PEOPLE v. GONZALEZ (2008)

 On appeal from a judgment convicting her following a jury trial of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ), defendant contends that reversal is required based on County Court's refusal to charge criminal possession of a controlled substance in the seventh degree as a lesser included offense of criminal possession of a controlled substance in the third degree.   We reject that contention.   The subdivision of criminal possession of a controlled substance of which defendant was convicted is defined in relevant part as possession of a controlled substance with intent to sell it, while the lesser crime requires only possession.   Because the jury found defendant guilty of criminal sale of a controlled substance, we conclude that any error in the court's refusal to charge the lesser included offense does not warrant reversal inasmuch as “[t]he verdict itself implies that [any] error did not affect the result” (People v. Ruiz, 223 A.D.2d 418, 419, 636 N.Y.S.2d 770, lv. denied 88 N.Y.2d 853, 644 N.Y.S.2d 699, 667 N.E.2d 349).   We reject the further contention of defendant that the People's failure to provide her with information concerning the acts underlying the youthful offender adjudication of a confidential informant constitutes a Brady violation.   Although the People have a duty to disclose exculpatory material, including “evidence impeaching the credibility of a prosecution witness whose testimony may be determinative of guilt or innocence” (People v. Baxley, 84 N.Y.2d 208, 213, 616 N.Y.S.2d 7, 639 N.E.2d 746, rearg. dismissed 86 N.Y.2d 886, 635 N.Y.S.2d 952, 659 N.E.2d 775), “ ‘[a] youthful offender adjudication is not a judgment of conviction for a crime,’ ” and thus information concerning those underlying acts does not constitute Brady material (People v. Fyffe, 249 A.D.2d 938, 938, 672 N.Y.S.2d 552, lv. denied 92 N.Y.2d 897, 680 N.Y.S.2d 61, 702 N.E.2d 846).

Defendant failed to preserve for our review her challenge to the court's ultimate Sandoval ruling (see People v. Brown, 39 A.D.3d 1207, 834 N.Y.S.2d 766, lv. denied 9 N.Y.3d 921, 844 N.Y.S.2d 176, 875 N.E.2d 895;  People v. Alston, 27 A.D.3d 1141, 1141-1142, 811 N.Y.S.2d 251, lv. denied 6 N.Y.3d 892, 817 N.Y.S.2d 627, 850 N.E.2d 674) and, in any event, that ruling did not constitute an abuse of discretion (see Brown, 39 A.D.3d 1207, 834 N.Y.S.2d 766).   We reject the contentions of defendant that the court erred in limiting her cross-examination of the confidential informant (see People v. Colucci, 198 A.D.2d 825, 605 N.Y.S.2d 997, lv. denied 82 N.Y.2d 923, 610 N.Y.S.2d 175, 632 N.E.2d 485), and that she was denied a fair trial based upon cumulative error.   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: