People v. Archie

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of crimes arising from the possession and sale of cocaine on two separate occasions. Defendant seeks reversal of his conviction under the first count of the indictment charging him with the criminal sale of a controlled substance “to an undercover New York State Trooper” on the ground that the alleged sale was made to an informant and not the State Trooper. Although ordinarily “the identity of the person to whom [defendant] sold drugs is not a material element of the crime of criminal sale of a controlled substance” (People v Pena [Roberto], 201 AD2d 676, 676-677, lv denied 83 NY2d 1006, 85 NY2d 941), Supreme Court instructed the jury here that it was a material element. Nevertheless, contrary to the contention of defendant, the evidence establishes that the State Trooper acted in concert with the informant to purchase the cocaine from defendant. The sentence is neither unduly harsh nor severe. (Appeal from Judgment of Supreme Court, Monroe County, Cornelius, J.— Criminal Sale Controlled Substance, 3rd Degree.) Present— Pigott, Jr., P. J., Pine, Hayes, Wisner and Kehoe, JJ.