PEOPLE v. LEWIS

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

The PEOPLE, etc., Respondent, v. Roosevelt LEWIS, Jr., Appellant.

Decided: August 11, 1997

Before BRACKEN, J.P., and COPERTINO, ALTMAN and FLORIO, JJ. Jennifer Wallman, Mount Vernon, for appellant. Jeanine Pirro, District Attorney, White Plains, (Bruce Edward Kelly and Maryanne Luciano, of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Westchester County (Murphy, J.), rendered April 14, 1993, convicting him of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and statements made by him to law enforcement officials.

ORDERED that the judgment is affirmed.

 The hearing court correctly denied those branches of the defendant's omnibus motion which were to suppress physical evidence and statements made by him to law enforcement officials.   When, as in this case, an experienced police officer observes the delivery of a clear plastic vial, “the ‘hallmark’ of [an illicit] drug transaction” (People v. McRay, 51 N.Y.2d 594, 605, 435 N.Y.S.2d 679, 416 N.E.2d 1015), in exchange for money and in an area known for its narcotics activity, an inference of probable cause arises (People v. McRay, supra, at 604, 435 N.Y.S.2d 679, 416 N.E.2d 1015;  People v. Goggans, 155 A.D.2d 689, 548 N.Y.S.2d 257).   During the Mapp/Huntley hearing, the court properly credited the testimony of the police officer, who had five years experience on the force and extensive experience in making narcotics arrests.   In light of the testimony of the officer, who observed the defendant exchange, for money, numerous small clear vials which contained a white powdery substance, in a location down the block from an area well known for narcotics activity, the court properly determined that there was probable cause to search and arrest the defendant (see, People v. Montano, 207 A.D.2d 913, 616 N.Y.S.2d 775).

 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.   Although the defendant contends that the testimony of the officer at trial was inconsistent and unworthy of belief, the resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witness (see, People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).  The jury's determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

 The defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).   In addition, the court did not penalize the defendant for exercising his right to a jury trial.   It is well established that a sentence imposed after trial may be more severe than that proposed in connection with a plea agreement (see, People v. Pena, 50 N.Y.2d 400, 429 N.Y.S.2d 410, 406 N.E.2d 1347, cert. denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814;  People v. Velez, 222 A.D.2d 539, 634 N.Y.S.2d 758).

MEMORANDUM BY THE COURT.

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