PEOPLE v. BROWN (2002)

Judgment, Supreme Court, New York County (Dora Irizarry, J.), rendered June 23, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 7 to 14 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to a term of 5 to 10 years, and otherwise affirmed.

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).   Issues of credibility and identification, including inconsistencies in testimony, were properly presented to the jury and we find no reason to disturb its determinations.

 Defendant was not deprived of a fair trial by police testimony concerning the roles of participants in street-level drug transactions, offered to explain the absence of prerecorded buy money on him at the time of his arrest, or by the prosecutor's comments on this subject during his opening statement and summation.   The testimony and comments at issue were extremely brief and limited, and carried no suggestion of large-scale drug activity (see, People v. McAllister, 255 A.D.2d 241, 682 N.Y.S.2d 129, lv. denied 93 N.Y.2d 876, 689 N.Y.S.2d 438, 711 N.E.2d 652).   We note that the court sustained most of defendant's objections to this material.   Furthermore, evidence that defendant took the buy money into a building, remained several minutes, and returned with drugs permitted several competing inferences, one of which was that defendant had one or more accomplices in the building (see, People v. Collins, 254 A.D.2d 154, 682 N.Y.S.2d 124, lv. denied 93 N.Y.2d 851, 688 N.Y.S.2d 499, 710 N.E.2d 1098;  People v. Taylor, 247 A.D.2d 277, 667 N.Y.S.2d 909, lv. denied 91 N.Y.2d 978, 672 N.Y.S.2d 857, 695 N.E.2d 726).

We find the sentence excessive to the extent indicated.