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

The PEOPLE of the State of New York, Respondent, v. Allen McGRAW, Appellant.

Decided: February 23, 2006

Before:  CARDONA, P.J., MERCURE, PETERS, CARPINELLO and ROSE, JJ. Cynthia Feathers, Delmar, for appellant. Donald A. Williams, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), rendered April 4, 2002, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.

Defendant was found guilty by a jury of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree for his accessory role in selling cocaine to two undercover police investigators.   On appeal, he claims that the verdict was against the weight of the evidence and that the People's summation deprived him of a fair trial.   Rejecting both contentions, we affirm.

The trial evidence established that two state police investigators, in conjunction with the City of Kingston police department, were engaged in an undercover buy and bust operation in a particular Kingston neighborhood in February 2001.   The investigators pulled up to a group of men, which included defendant and codefendant Mitchell Gardner, and asked for “three for fifty,” referring to three pieces of crack cocaine for $50.   Gardner ultimately gave them three individually wrapped pieces of a substance, which later tested positive for crack cocaine, in exchange for $50 cash.

Although the two investigators in the vehicle were unable to observe all that was happening outside the vehicle, a Kingston police officer videotaping the transaction confirmed that Gardner approached the vehicle and spoke with its driver.   Gardner was then observed by this officer motioning to defendant and two other men with three fingers.   This officer then observed items being handed over to Gardner.   Defendant was specifically observed fumbling for something in his pocket.   After Gardner handed these items over to the undercover investigators in the vehicle, he then gave each of the three men, including defendant, a portion of the buy money.   The videotape of the transaction was shown to the jury and reviewed by this Court.

Viewing this evidence in a neutral light and deferring to the jury's credibility determinations, we reject defendant's argument that his convictions for the charged crimes as an accomplice (see Penal Law § 20.00) are against the weight of the evidence (see CPL 470.15[5];  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   Otherwise stated, we conclude that the jury could properly find that defendant intentionally aided Gardner in the possession and sale of cocaine that day (see e.g. People v. Hatch-Green, 20 A.D.3d 581, 798 N.Y.S.2d 215 [2005], lvs. denied 5 N.Y.3d 828, 830, 804 N.Y.S.2d 43, 44, 837 N.E.2d 742, 743 [2005];  People v. Dean, 200 A.D.2d 582, 582-583, 606 N.Y.S.2d 290 [1994], lv. denied 83 N.Y.2d 871, 613 N.Y.S.2d 131, 635 N.E.2d 300 [1994];  People v. Clarke, 195 A.D.2d 569, 570, 600 N.Y.S.2d 732 [1993], lv. denied 82 N.Y.2d 752, 603 N.Y.S.2d 994, 624 N.E.2d 180 [1993];  see generally People v. Hill, 198 A.D.2d 100, 100-101, 603 N.Y.S.2d 829 [1993];  People v. Williams, 172 A.D.2d 448, 568 N.Y.S.2d 797 [1991], affd. 79 N.Y.2d 803, 580 N.Y.S.2d 188, 588 N.E.2d 86 [1991] ).

Finally, to the extent that any errors occurred during the People's summation, they were harmless and do not, whether viewed alone or cumulatively, warrant a new trial.

ORDERED that the judgment is affirmed.



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