In this drugs case, defendant appeals from a judgment of the County Court, Suffolk County, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and resisting arrest, upon a jury verdict, and sentencing him to concurrent indeterminate terms of 12 1/2 to 25 years imprisonment on the convictions of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and a concurrent term of one year imprisonment on the conviction of resisting arrest.
A Suffolk County drug attorney said that the Court Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentences imposed upon the convictions of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree to 7 1/2 to 15 years; as so modified, the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to prove his identify as the seller is unpreserved for appellate review. In any event, viewing the evidence in the light most favorable to the prosecution, The Court found it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence. The evidence adduced at trial clearly established that the defendant sold cocaine to the Detective.
The sentence imposed was excessive to the extent indicated. The defendant's remaining contentions are either unpreserved for appellate review or without merit.
In another drug case, defendant appeals from a judgment of the County Court, Suffolk County, convicting him of criminal possession of a controlled substance in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
According to a Suffolk County drug lawyer, contrary to the defendant's contention, the County Court properly concluded that there was no basis to suppress the evidence seized from his home pursuant to a search warrant. It was the defendant's burden at the hearing to establish, by a preponderance of the evidence, that the police detective who prepared the warrant application made false statements knowingly and intentionally or with reckless disregard for the truth. Although the confidential informant testified at the hearing that she did not make certain statements which the detective attributed to her in the warrant application, the hearing court found that her testimony was not credible. This credibility assessment is entitled to great weight on appeal, and will not be disturbed unless clearly unsupported by the record. Since the decision not to credit the informant's hearing testimony is supported by the record, the defendant failed to meet his burden of establishing that the challenged statements in the warrant application were perjurious or made with a reckless disregard for the truth. In any event, the record supports the hearing court's further determination that probable cause for the issuance of the warrant existed even without considering the statements which allegedly were falsely attributed to the informant in the application.
Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish that the defendant was in constructive possession of the cocaine seized from a room in his home, and thus guilty of criminal possession of a controlled substance in the first degree. 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.
Thus, the Court held that the sentence imposed was not excessive.
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