PEOPLE v. JAMES (1998)

Judgment, Supreme Court, New York County (Patricia Williams, J.), rendered June 17, 1996, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing her, as a second felony offender, to a term of 2 to 4 years, and order, same court and Justice, entered June 17, 1996, unanimously modified, on the law, to vacate the sentence and remand the matter for resentencing, and otherwise affirmed.

 Contrary to the finding of the sentencing court, in this defendant was clearly an active participant in the sale of crack-cocaine to the undercover officer.   Moreover, in considering defendant's character and the threat she poses to society, as reflected by her past criminal record, the imposition of the mandatory minimum sentence in this case would not have been unconstitutional (see, People v. Thompson 83 N.Y.2d 477, 480, 611 N.Y.S.2d 470, 633 N.E.2d 1074;  People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. denied 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287).

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant's actions in leaning within a foot of the undercover as he crouched down to pick up two of the glassines of crack that were neatly arranged on the sidewalk, directing him to take “only two”, the exact amount he purchased, and nodding her approval upon seeing that he had only taken that amount was ample evidence from which the jury could reasonably infer defendant's intentional participation in the sale as the overseer of the supply of drugs.

Defendant's remaining contention is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would find it to be without merit.

MEMORANDUM DECISION.