PEOPLE v. LYNN

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

The PEOPLE of the State of New York, Respondent, v. Robert LYNN, Defendant-Appellant.

Decided: March 28, 2006

ANDRIAS, J.P., SULLIVAN, WILLIAMS, GONZALEZ, CATTERSON, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Richard Nahas of counsel), for respondent.

Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered November 12, 2003, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third, fourth and seventh degrees, and unlawful possession of marijuana, and sentencing him, as a second felony offender, to an aggregate term of 4 1/212 to 9 years, unanimously affirmed.

 The verdict was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112 [1903] ).   The evidence established defendant's possession of the drugs at issue inasmuch as he leased the premises in which the drugs were found and personally operated his business there (see People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992];  People v. Torres, 68 N.Y.2d 677, 505 N.Y.S.2d 595, 496 N.E.2d 684 [1986];  People v. Fetter, 201 A.D.2d 500, 607 N.Y.S.2d 381 [1994], lv. denied 83 N.Y.2d 967, 616 N.Y.S.2d 19, 639 N.E.2d 759 [1994] ).   The jury was entitled to discredit defendant's testimony that he had relinquished control of the portion of the store in which the drugs were located to an alleged subtenant.

 Defendant was not entitled to disclosure of the identity of a confidential informant (see People v. Goggins, 34 N.Y.2d 163, 356 N.Y.S.2d 571, 313 N.E.2d 41 [1974], cert. denied 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286 [1974] ).   The informant's possible testimony had no bearing on defendant's guilt or innocence, his only role being to confirm that drugs were being sold at the location (see People v. Allen, 298 A.D.2d 856, 747 N.Y.S.2d 862 [2002], lv. denied 99 N.Y.2d 579, 755 N.Y.S.2d 715, 785 N.E.2d 737 [2003] ).

Defendant's claim that he is entitled to a transcript of the Darden hearing is without merit.   A summary report of the hearing suffices to raise any possible appellate issues (see People v. Darden, 34 N.Y.2d 177, 181, 356 N.Y.S.2d 582, 313 N.E.2d 49 [1974] ).

Since defendant requested submission of a lesser included offense on a completely different theory from the one he advances on appeal, his present argument is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would reject it (see People v. Negron, 91 N.Y.2d 788, 676 N.Y.S.2d 520, 699 N.E.2d 32 [1998] ).