PEOPLE v. PEDROZA (2008)

Appeals by the defendant from two judgments of the Supreme Court, Kings County (Gary, J.), both rendered November 9, 2004, convicting her of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree under Indictment No. 5500/00, and petit larceny under Indictment No. 5925/00, after nonjury trials, and imposing sentences.

ORDERED that the judgments are affirmed.

 The defendant's challenge to the legal sufficiency of the evidence supporting her conviction of criminal possession of a controlled substance in the third degree is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Cona, 49 N.Y.2d 26, 33 n. 2, 424 N.Y.S.2d 146, 399 N.E.2d 1167).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant possessed 110 glassine envelopes of heroin with the intent to sell them (see Penal Law § 220.16[1] ).   Contrary to the defendant's contention, her acquittal of the criminal sale counts stemming from her alleged participation with the codefendant in the sale of heroin to an undercover officer minutes before her arrest did not render the evidence insufficient with respect to her possession of heroin with intent to sell it (see People v. Miller, 282 A.D.2d 550, 551, 722 N.Y.S.2d 751;  People v. Cruz, 197 A.D.2d 630, 631, 602 N.Y.S.2d 675;  People v. Nelson, 189 A.D.2d 828, 829, 592 N.Y.S.2d 466).   Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt as to criminal possession of a controlled substance in the third degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 The defendant's challenge to the legal sufficiency of the evidence supporting her conviction of petit larceny is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d at 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Cona, 49 N.Y.2d at 33 n. 2, 424 N.Y.S.2d 146, 399 N.E.2d 1167).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d at 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish, beyond a reasonable doubt, that the defendant, acting in concert with the codefendant, stole property from the victim (see Penal Law § 155.25).   Moreover, upon the exercise of our factual review power (see CPL 470.15 [5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's remaining contentions are without merit.