The People, etc., respondent, v. Derrick Smiley, appellant. (2010)

Submitted-April 20, 2010

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Gazzillo, J.), rendered June 5, 2008, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the arresting detective should not have been allowed to testify as an expert is unpreserved for appellate review (see CPL 470.05[2] ), and we decline to review that contention in the exercise of our interest of justice jurisdiction.

Contrary to the defendant's contention, the jury verdict was not inconsistent.   Inasmuch as possession is not a necessary element of criminal sale of a controlled substance in the third degree (see Penal Law § 220.39 [1] ), the jury's acquittal of the defendant of the charge of criminal possession of a controlled substance in the third degree (see Penal Law § 220.16[1] ) does not render infirm his conviction of criminal sale of a controlled substance in the third degree (see CPL 300.30[5];  People v. Trappier, 87 N.Y.2d 55, 58;  People v. Carrion, 282 A.D.2d 543).

The defendant's contention that his conviction of criminal sale of a controlled substance in the third degree was not supported by legally sufficient evidence is unpreserved for appellate review, as defense counsel merely made a general motion for a trial order of dismissal at the close of the People's case (see CPL 470.05[2];  People v. Hawkins, 11 NY3d 484, 492).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621), we find that the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.

Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5];  People v. Romero, 7 NY3d 633, 644-645).

The sentence imposed was not excessive (see Penal Law § 70.02;  People v. Adams, 55 AD3d 616).

The defendant's remaining contentions are without merit.

DILLON, J.P., MILLER, DICKERSON and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court