PEOPLE v. RODRIGUEZ

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

The PEOPLE, etc., respondent, v. Daniel RODRIGUEZ, appellant.

Decided: January 27, 2009

PETER B. SKELOS, J.P., MARK C. DILLON, WILLIAM E. McCARTHY, and RANDALL T. ENG, JJ. Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Braslow, J.), rendered May 19, 2006, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to support his conviction of criminal sale of a controlled substance in the third degree is unpreserved for appellate review (see People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946;  CPL 470.05[2] ).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Martinez, 289 A.D.2d 259, 734 N.Y.S.2d 474;  People v. Torres, 150 A.D.2d 816, 542 N.Y.S.2d 236).   Contrary to the defendant's position, the People proved he was not acting as the agent or mere extension of the buyer (see People v. Roche, 45 N.Y.2d 78, 81, 407 N.Y.S.2d 682, 379 N.E.2d 208 cert. denied 439 U.S. 958, 99 S.Ct. 359, 58 L.Ed.2d 350;  People v. Matos, 123 A.D.2d 330, 331, 506 N.Y.S.2d 225).   The evidence adduced at trial established that the defendant displayed an independent interest and his behavior “purposefully affected or furthered the sale of the controlled substance” (People v. Martinez, 289 A.D.2d at 259, 734 N.Y.S.2d 474 [internal quotation marks omitted];  see People v. Roche, 45 N.Y.2d at 81, 407 N.Y.S.2d 682, 379 N.E.2d 208;  People v. Torres, 150 A.D.2d at 816, 542 N.Y.S.2d 236).

Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

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