The People of the State of New York, Respondent, v. Robert Birch, Defendant-Appellant.

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

The People of the State of New York, Respondent, v. Robert Birch, Defendant-Appellant.

1938

Decided: January 07, 2010

Mazzarelli, J.P., Friedman, Nardelli, Renwick, Román, JJ. Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (David P. Stromes of counsel), for respondent.

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Judgment, Supreme Court, New York County (Ronald A. Zweibel, J), rendered August 7, 2008, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348-349 [2007] ).   There is no basis for disturbing the jury's determinations concerning credibility.   The evidence provided a satisfactory explanation for the fact that two officers made different observations, and defendant's arguments to the contrary are without merit.

The court properly exercised its discretion in admitting evidence that, earlier in the evening of the charged sale, the observing officer saw defendant make what appeared to be a drug sale to an unapprehended buyer.   This evidence completed the narrative and its probative value outweighed its prejudicial effect (see e. g. People v. Urena, 306 A.D.2d 137 [2003] ), lv denied 100 N.Y.2d 625 [2003] ).   While the court should have provided a limiting instruction regarding the uncharged crime, we find, to the extent the claim is preserved, that any error is harmless.

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK