PEOPLE v. SHANLEY (2005)

 On appeal from a judgment convicting him upon a jury verdict of criminal sale of a controlled substance in the fourth degree (Penal Law § 220.34[1] ), criminal possession of a controlled substance in the fifth degree (§ 220.06[1] ), criminal sale of marihuana in the fourth degree (§ 221.40) and unlawful possession of marihuana (§ 221.05), defendant contends that County Court erred in admitting a partially inaudible electronic surveillance tape.   We reject that contention (see People v. Cleveland, 273 A.D.2d 787, 788, 709 N.Y.S.2d 751, lv. denied 95 N.Y.2d 864, 715 N.Y.S.2d 218, 738 N.E.2d 366).   Defendant further contends that the court erred in denying his motion to dismiss the second count of the indictment for facial insufficiency and granting the People's motion to amend the indictment.   The failure of the second count of the indictment to include an element of the crime did not constitute a jurisdictional defect because that count specifically referred to the applicable section of the Penal Law (see People v. Marshall, 299 A.D.2d 809, 810, 750 N.Y.S.2d 378).   We further reject defendant's contention that the sentence is unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: