PEOPLE v. DAY

Reset A A Font size: Print

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

The PEOPLE of the State of New York, Respondent, v. Roy DAY, Defendant-Appellant.

Decided: October 28, 2004

BUCKLEY, P.J., MAZZARELLI, ANDRIAS, WILLIAMS, SWEENY, JJ. Traub & Traub, P.C., New York (Doris G. Traub of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Benjamin Cheeks of counsel), for respondent.

Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered September 9, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third and fourth degrees, and sentencing him, as a second felony offender, to an aggregate term of 6 to 12 years, unanimously affirmed.

Defendant's challenge to the sufficiency of the evidence with respect to his accessorial liability is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the inference is inescapable that defendant was a participant in a drug operation, and that he supplied drugs to another participant who, in turn, transferred them to a third participant who sold them to the buyers (see People v. Roman, 83 N.Y.2d 866, 611 N.Y.S.2d 829, 634 N.E.2d 201 [1994];  People v. Kaplan, 76 N.Y.2d 140, 556 N.Y.S.2d 976, 556 N.E.2d 415 [1990] ).   In addition to delivering a plastic bag containing a large quantity of apparent drug vials, defendant remained on the scene and was arrested while in possession of $862 in cash.

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.