People v. Gomez

Judgment, Supreme Court, New York County (Felice Shea, J.), entered January 26, 1989, which, after a jury trial, found the defendant guilty of criminal sale of a controlled substance in the third degree and sentenced him, as a predicate felon, to 4 Vi to 9 years in prison, is affirmed.

Defendant was tried and found guilty of acting in concert with another in the sale of cocaine to an undercover police officer. Defendant’s sole argument on appeal is that the People failed to prove his guilt beyond a reasonable doubt. Viewing the evidence in the light most favorable to the People, as we must (People v Malizia, 62 NY2d 755, 757 [1984], cert denied 469 US 932 [1984]), the evidence was sufficient to establish defendant’s guilt beyond a reasonable doubt.

The evidence was that on November 13, 1988 around 2:30 p.m. an undercover police officer got out of a car around 89th Street and Amsterdam Avenue in Manhattan. He was in street clothes. As the undercover approached 90th Street and Amsterdam Avenue, he met the defendant who was standing on the corner. The undercover approached the defendant and asked him if he had "bottles,” a name referring to "crack” cocaine. The defendant asked, “How many?” The undercover replied, “Four.” Defendant then said, "Let’s go over to my man.” The two men then walked approximately three blocks on Amsterdam to the area between 93rd and 94th Streets. They approached a male at that location and the defendant told the male to give four to the undercover. The male took four vials of cocaine from an umbrella, handed them to the undercover and received twenty dollars of prerecorded buy money from the undercover in return. When the undercover began to walk away, defendant followed him and asked for a dollar. The undercover gave him a dollar. Both defendant and the other male, Lester James, were arrested.

In contrast to this testimony by the undercover, the defendant testified that the undercover approached him and asked where he could buy “crack”. The defendant told him at a project on 93rd and Amsterdam Avenue. The undercover asked defendant to show him where to purchase it and the two proceeded to the area.

The evidence created a factual issue as to whether the defendant was acting in concert. The jury believed the evidence presented by the People which was sufficient to establish defendant’s guilt beyond a reasonable doubt. Concur— Sullivan, Rosenberger, Kassal and Smith, JJ.