THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. TONY SPENCER DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. TONY L. SPENCER, DEFENDANT–APPELLANT.

KA 10–00727

Decided: April 29, 2011

PRESENT:  SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ. TIMOTHY J. BRENNAN, AUBURN, FOR DEFENDANT–APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of four counts each 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 third degree (§ 220.16[1] ).   Contrary to defendant's contention, County Court properly granted the People's request to amend the indictment to delete language identifying the buyer as an undercover police officer.   That amendment “did not change the theory of the prosecution, nor did it ‘otherwise tend to prejudice the defendant on the merits' “ (People v. Brink, 31 AD3d 1139, 1140, lv denied 7 NY3d 865, quoting CPL 200.70[1];  see People v. Waxter, 268 A.D.2d 899, 900;  People v. Brown, 196 A.D.2d 428, 429–430, lv denied 82 N.Y.2d 804).   We further conclude that the court's imposition of consecutive sentences is not unduly harsh or severe.

Patricia L. Morgan

Clerk of the Court