PEOPLE v. ARCHIE (2000)

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Booker ARCHIE, Defendant-Appellant.

Decided: November 13, 2000

PRESENT: PIGOTT, JR., P.J., PINE, HAYES, WISNER and KEHOE, JJ.

Bridget L. Field, for Defendant-Appellant. Loretta S. Courtney, Rochester, for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him upon a jury verdict of crimes arising from the possession and sale of cocaine on two separate occasions. Defendant seeks reversal of his conviction under the first count of the indictment charging him with the criminal sale of a controlled substance “to an undercover New York State Trooper” on the ground that the alleged sale was made to an informant and not the State Trooper. Although ordinarily “the identity of the person to whom [defendant] sold drugs is not a material element of the crime of criminal sale of a controlled substance” (People v. Pena [Roberto], 201 A.D.2d 676, 676-677, 609 N.Y.S.2d 827, lv. denied 83 N.Y.2d 1006, 616 N.Y.S.2d 487, 640 N.E.2d 155; 85 N.Y.2d 941, 627 N.Y.S.2d 1003, 651 N.E.2d 928), Supreme Court instructed the jury here that it was a material element. Nevertheless, contrary to the contention of defendant, the evidence establishes that the State Trooper acted in concert with the informant to purchase the cocaine from defendant. The sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM:

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