PEOPLE v. RUFFINS (2006)

 Defendant appeals from a judgment entered upon a jury verdict convicting him of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and criminal possession of a controlled substance in the fifth degree (§ 220.06[5] ) arising from the recovery, upon the execution of a search warrant, of cocaine found in defendant's residence.   Contrary to the contention of defendant, County Court properly denied his request to disclose the identity of the confidential informant who supplied information in support of the application for the search warrant.  “Defendant failed to establish that the [confidential] informant's testimony would tend to be exculpatory or would create a reasonable doubt as to the reliability of the prosecution's case” (People v. Williams, 242 A.D.2d 917, 918, 662 N.Y.S.2d 896, lv. denied 91 N.Y.2d 899, 669 N.Y.S.2d 13, 691 N.E.2d 1039 [internal quotation marks omitted];  see People v. Lesiuk, 81 N.Y.2d 485, 489, 600 N.Y.S.2d 931, 617 N.E.2d 1047).   Contrary to the further contention of defendant, the court did not abuse its discretion in denying his request for a missing witness charge with respect to the confidential informant.  “Because the People were not obligated to produce the confidential informant, defendant was not entitled to a missing witness charge with respect to the confidential informant” (Williams, 242 A.D.2d at 918, 662 N.Y.S.2d 896).

Even assuming, arguendo, that defendant is correct that the court erred in allowing opinion testimony on the ultimate issue of possession with intent to sell, we conclude that any error in the admission of that testimony is harmless (see People v. Russell, 2 A.D.3d 1455, 1457, 770 N.Y.S.2d 252, lv. denied 2 N.Y.3d 745, 778 N.Y.S.2d 471, 810 N.E.2d 924;  People v. Williams, 224 A.D.2d 725, 638 N.Y.S.2d 705, lv. denied 88 N.Y.2d 855, 644 N.Y.S.2d 702, 667 N.E.2d 352).   Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction of criminal possession of a controlled substance in the third degree (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   The verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Finally, the court properly denied without a hearing defendant's CPL 330.30 motion to set aside the verdict based on alleged juror misconduct (see People v. Harrell, 284 A.D.2d 248, 249, 729 N.Y.S.2d 2, lv. denied 97 N.Y.2d 656, 737 N.Y.S.2d 57, 762 N.E.2d 935;  see generally People v. Maragh, 94 N.Y.2d 569, 574, 708 N.Y.S.2d 44, 729 N.E.2d 701;  People v. Cilberg, 255 A.D.2d 698, 700, 680 N.Y.S.2d 697, lv. denied 93 N.Y.2d 968, 695 N.Y.S.2d 53, 716 N.E.2d 1098).

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

MEMORANDUM: