PEOPLE v. BROWN

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Marvin BROWN, Defendant-Appellant.

Decided: December 31, 2003

PRESENT:  PIGOTT, JR., P.J., GREEN, PINE, HURLBUTT, AND KEHOE, JJ. Bonnie Burgio, Watertown, for Defendant-Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him following a jury trial of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the seventh degree (§ 220.03).   County Court properly denied defendant's request for a Darden hearing (see People v. Darden, 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49, rearg. denied 34 N.Y.2d 995, 360 N.Y.S.2d 1027, 318 N.E.2d 613) because defendant did not challenge the existence of the confidential informant (see People v. Serrano, 93 N.Y.2d 73, 77, 688 N.Y.S.2d 90, 710 N.E.2d 655;  People v. Reynoso, 295 A.D.2d 156, 157, 744 N.Y.S.2d 7, lv. denied 98 N.Y.2d 701, 747 N.Y.S.2d 420, 776 N.E.2d 9;  People v. Mingo, 117 A.D.2d 353, 356, 502 N.Y.S.2d 558, lv. denied 68 N.Y.2d 772, 506 N.Y.S.2d 1056, 498 N.E.2d 158).

 Contrary to defendant's further contention, the conviction is supported by legally sufficient evidence, i.e., the eyewitness testimony of the police officer and confidential informant, along with the forensic testimony establishing the existence of cocaine (see People v. McGlocton, 267 A.D.2d 614, 614-615, 699 N.Y.S.2d 763, lv. denied 94 N.Y.2d 905, 707 N.Y.S.2d 389, 728 N.E.2d 988).   In addition, defendant contends that the discrepancy in the testimony concerning the weight of the cocaine requires dismissal of the indictment.   We reject that contention.   Any such discrepancy goes to the weight of the evidence, not its admissibility, especially where, as here, the People's witnesses offered an explanation for the discrepancy (see People v. Lanza, 299 A.D.2d 649, 650-651, 749 N.Y.S.2d 618, lv. denied 100 N.Y.2d 540, 563, 763 N.Y.S.2d 5, 820, 793 N.E.2d 419, 46;  People v. Martinez, 151 A.D.2d 965, 542 N.Y.S.2d 64, lv. denied 74 N.Y.2d 814, 546 N.Y.S.2d 572, 545 N.E.2d 886).

 We reject defendant's contention that the confidential informant was an accomplice as a matter of law.   An informant acting as an agent of the police without the intent to commit a crime is not an accomplice whose testimony requires corroboration (see People v. Tillman, 289 A.D.2d 1006, 1007, 737 N.Y.S.2d 179, lv. denied 97 N.Y.2d 734, 740 N.Y.S.2d 707, 767 N.E.2d 164;  People v. Cleveland, 273 A.D.2d 787, 788, 709 N.Y.S.2d 751, lv. denied 95 N.Y.2d 864, 715 N.Y.S.2d 218, 738 N.E.2d 366).   Contrary to defendant's further contentions, the court's prompt curative instruction cured any Molineux error with respect to testimony concerning prior uncharged crimes (see People v. Robinson, 309 A.D.2d 1228, 764 N.Y.S.2d 757;  People v. Saracina, 298 A.D.2d 953, 954, 748 N.Y.S.2d 109, lv. denied 99 N.Y.2d 564, 754 N.Y.S.2d 216, 784 N.E.2d 89;  People v. Panepinto, 161 A.D.2d 1192, 555 N.Y.S.2d 525, lv. denied 76 N.Y.2d 862, 560 N.Y.S.2d 1002, 561 N.E.2d 902), and the court's Sandoval ruling does not constitute an abuse of discretion (see People v. Hayes, 97 N.Y.2d 203, 208, 738 N.Y.S.2d 663, 764 N.E.2d 963;  People v. Beckwith, 309 A.D.2d 1253, 767 N.Y.S.2d 713).   We see no reason to reduce the sentence in the interest of justice.   Finally, we have examined defendant's remaining contentions and conclude that they are lacking in merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: