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PEOPLE v. DUFFY (1999)

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

The PEOPLE, etc., respondent, v. Kim DUFFY, appellant.

Decided: October 25, 1999

LAWRENCE J. BRACKEN, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY and ROBERT W. SCHMIDT, JJ. John A. Clifford, Long Beach, N.Y., for appellant. Denis Dillon, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Noreen Healey of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Belfi, J.), rendered January 16, 1998, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was arrested after he sold a bag of cocaine to an undercover police officer.   The police then searched the defendant and recovered a plastic bag of sugar.   The defendant now contends that the admission into evidence of the bag of sugar was improper, since it constituted evidence of criminally using drug paraphernalia in the second degree, an uncharged crime.   However, this contention is unpreserved for appellate review (see, CPL 470.05[2];  People v. Berrios, 71 N.Y.2d 905, 528 N.Y.S.2d 537, 523 N.E.2d 824;  People v. Wilson, 225 A.D.2d 642, 639 N.Y.S.2d 131).   In any event, the contention is without merit.   The evidence was admissible to complete the narrative of events (see, People v. Gines, 36 N.Y.2d 932, 373 N.Y.S.2d 543, 335 N.E.2d 850) and was inextricably interwoven with the crime (see, People v. Vails, 43 N.Y.2d 364, 401 N.Y.S.2d 479, 372 N.E.2d 320).

Contrary to the defendant's contention, the theory advanced in the indictment did not vary from the facts established by the People at trial (see, People v. Grega, 72 N.Y.2d 489, 534 N.Y.S.2d 647, 531 N.E.2d 279;  cf., People v. Roberts, 72 N.Y.2d 489, 534 N.Y.S.2d 647, 531 N.E.2d 279).

The defendant's sentence was neither harsh nor excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).


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