PEOPLE v. NEVADO

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

The PEOPLE of the State of New York, Respondent, v. Juan NEVADO, etc., Defendant-Appellant.

Decided: October 20, 2005

SAXE, J.P., ELLERIN, WILLIAMS, CATTERSON, MALONE, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Adam Wolrich of counsel), for respondent.

Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered March 5, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and fifth degrees, and sentencing him, as a second felony offender, to an aggregate term of 4 1/212 to 9 years, unanimously affirmed.

In this observation sale case, the court properly exercised its discretion in receiving photographs depicting the observing officer's view.   While the photos were taken under different lighting conditions from those existing at the time of the sale, and in a season in which there were presumably fewer leaves on trees shown in the photos than would have been present originally, these differences went to weight rather than admissibility (see People v. Cruz, 5 A.D.3d 190, 191, 773 N.Y.S.2d 392, lv. denied 2 N.Y.3d 798, 781 N.Y.S.2d 297, 814 N.E.2d 469 [2004];  People v. Whiten, 306 A.D.2d 105, 106, 759 N.Y.S.2d 870, lv. denied 100 N.Y.2d 600, 766 N.Y.S.2d 176, 798 N.E.2d 360 [2003];  see also People v. Ferrero, 14 A.D.3d 447, 788 N.Y.S.2d 367 [2005], lv. denied 4 N.Y.3d 886, 798 N.Y.S.2d 731, 831 N.E.2d 976 [2005] ).   The photos were properly authenticated because the observing officer confirmed that they accurately depicted his view of the scene, with the exception of the lighting and foliage differences, and testified that at the time of the sale the area was well-lit and nothing, including foliage, obstructed his view.   Furthermore, the differences between the original lighting and foliage conditions and those shown in the photos were fully explored at trial, and the court gave a suitable instruction to the jury.