PEOPLE v. MARTIN

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Clarence MARTIN, Defendant-Appellant.

Decided: December 30, 1999

PRESENT:  PINE, J.P., HAYES, WISNER, PIGOTT, JR., and SCUDDER, JJ. Michael J. Crosby, Rochester, for Defendant-Appellant. Patrick H. Fierro, Rochester, for Plaintiff-Respondent.

 There is no merit to defendant's contention that the People failed to present legally sufficient evidence regarding the identification of defendant.   The undercover officer who purchased marihuana from defendant testified that he knew defendant from previous encounters.   On the day that he purchased the marihuana, the officer was able to observe defendant.   Although the officer was unable to identify defendant from photographs shown at trial, that failure did not render his testimony concerning the identification of defendant so contradictory or unbelievable that it should be deemed insufficient as a matter of law (see, People v. Carter, 63 N.Y.2d 530, 537, 483 N.Y.S.2d 654, 473 N.E.2d 6;  People v. Drake, 247 A.D.2d 855, 856, 668 N.Y.S.2d 809, lv. denied 92 N.Y.2d 851, 677 N.Y.S.2d 81, 699 N.E.2d 441).  Because the verdict is supported by legally sufficient evidence, we conclude that County Court properly denied defendant's motion for a trial order of dismissal (see, People v. Carter, supra, at 536, 483 N.Y.S.2d 654, 473 N.E.2d 6;  People v. Phillips, 256 A.D.2d 733, 734-735, 682 N.Y.S.2d 685;  People v. Wilson, 167 A.D.2d 946, 947, 561 N.Y.S.2d 1010, lv. denied 77 N.Y.2d 845, 567 N.Y.S.2d 214, 568 N.E.2d 663).  We further conclude that the verdict is not against the weight of the evidence.   The credibility of the officer was for the jury to resolve, and it cannot be said that the jury failed to give the evidence the weight it should be accorded (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Finally, contrary to defendant's contention, the testimony of the officer that he knew that defendant's name was Clarence Martin was not hearsay (see generally, People v. Huertas, 75 N.Y.2d 487, 491-492, 554 N.Y.S.2d 444, 553 N.E.2d 992).

Judgment unanimously affirmed.

MEMORANDUM: