PEOPLE v. LABOY (1998)

Judgment, Supreme Court, Bronx County (Lawrence Tonetti, J.), rendered January 17, 1996, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   We see no reason to disturb the credibility determinations of the jury.   As this Court has repeatedly held, contrary to defendant's “masked repugnancy” argument (see, People v. Downing, 225 A.D.2d 391, 640 N.Y.S.2d 746, lv. denied 88 N.Y.2d 965, 647 N.Y.S.2d 719, 670 N.E.2d 1351), an acquittal on a sale count does not necessarily undermine the sufficiency or weight of the evidence supporting a conviction on a possession with intent to sell count (see, People v. Vaughn, 242 A.D.2d 458, 662 N.Y.S.2d 113, lv. denied 91 N.Y.2d 837, 667 N.Y.S.2d 691, 690 N.E.2d 500).   Contrary to defendant's argument, the principle of collateral estoppel is inapplicable to verdicts reached in a single trial (United States v. Powell, 469 U.S. 57, 58, 105 S.Ct. 471, 83 L.Ed.2d 461;  Ohio v. Johnson, 467 U.S. 493, 500 n. 9, 104 S.Ct. 2536, 81 L.Ed.2d 425).

The court's charge on intent, viewed as a whole, conveyed the proper standards (see, People v. Fraser, 181 A.D.2d 425, 426, 580 N.Y.S.2d 751, lv. denied 79 N.Y.2d 1000, 584 N.Y.S.2d 455, 594 N.E.2d 949).

Defendant's challenges to the court's credibility and reasonable doubt charges are unpreserved, and we decline to review them in the interest of justice.   Were we to review them, we would find that those charges adequately conveyed the appropriate principles.

We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.