PEOPLE v. FULTON (2006)

 Defendant appeals from a judgment convicting him after a jury trial of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06[1] ) and seven counts of criminal sale of a controlled substance in the fifth degree (§ 220.31), stemming from his distribution of LSD to several people at a party.   Defendant contends that the evidence is legally insufficient to establish that the substance that he possessed and distributed was LSD. By failing to renew his motion to dismiss after presenting evidence, defendant failed to preserve his contention for our review (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;  People v. Haberer, 24 A.D.3d 1283, 1284, 805 N.Y.S.2d 904;  People v. McDaniels, 19 A.D.3d 1071, 1072, 796 N.Y.S.2d 484, lv. denied 5 N.Y.3d 830, 804 N.Y.S.2d 45, 837 N.E.2d 744).   In any event, his contention is without merit.  “In situations where the illegal substance is not available for analysis, drug users who can demonstrate a knowledge of the narcotic are competent to testify.   It is for the jury to determine the weight to be given the testimony” (People v. Christopher, 161 A.D.2d 896, 897, 557 N.Y.S.2d 461, lv. denied 76 N.Y.2d 786, 559 N.Y.S.2d 991, 559 N.E.2d 685;  see People v. Lynch, 85 A.D.2d 126, 128-129, 447 N.Y.S.2d 549).   The People presented testimony establishing that defendant told the people at the party that he was giving them LSD. Two witnesses who had taken LSD on many prior occasions, as well as the People's expert witness, described the effects of taking LSD, and the description of those effects was consistent with the testimony of the witnesses who received the substance from defendant with respect to how they felt after consuming it.   Two other witnesses testified that the effects they felt after consuming the substance that defendant gave to them were similar to the effects they felt when they had taken LSD on a prior occasion.   In addition, one of the witnesses testified that she was familiar with the process of cutting a sheet of paper that had been dipped in LSD into strips and then placing those strips into the mouths of others, and she testified that she observed defendant engaging in that conduct.

 Defendant further contends that County Court erred in failing to give a circumstantial evidence charge.   Even assuming, arguendo, that such a charge was required (see People v. Burke, 62 N.Y.2d 860, 861, 477 N.Y.S.2d 618, 466 N.E.2d 158;  cf. People v. Rumble, 45 N.Y.2d 879, 880-881, 410 N.Y.S.2d 806, 383 N.E.2d 108;  People v. Mastowski, 26 A.D.3d 744, 808 N.Y.S.2d 871), we conclude that the court's failure to give the charge is harmless error.   The evidence, which included inculpatory statements made by defendant, is overwhelming, and there is no significant probability that defendant would have been acquitted had the circumstantial evidence charge been given (see People v. Brian, 84 N.Y.2d 887, 889, 620 N.Y.S.2d 789, 644 N.E.2d 1345).   Finally, contrary to the contention of defendant, he received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

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

MEMORANDUM: