State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 21, 2016 106229 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

JOHN BOYD, Also Known as JB,

Appellant.

________________________________

Calendar Date: November 19, 2015

Before: Peters, P.J., Lahtinen, Garry, Rose and Clark, JJ.

__________

Sandra M. Colatosti, Albany, for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark

of counsel), for respondent.

__________

Peters, P.J.

Appeal from a judgment of the Supreme Court (Breslin, J.),

rendered August 13, 2013 in Albany County, upon a verdict

convicting defendant of the crime of criminal sale of a

controlled substance in the third degree.

Following a jury trial, defendant was convicted of criminal

sale of a controlled substance in the third degree stemming from

his sale of heroin to a confidential informant (hereinafter CI)

on April 10, 2012. The trial evidence established that police

detectives strip-searched the CI for contraband and, finding

none, fitted her with a wire and provided her with prerecorded

buy money. The CI was then transported by one of the detectives

to a location in the City of Albany where she made a controlled

call to defendant arranging for the two to meet. While under
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constant police surveillance, the CI walked via a predetermined

route to the agreed-upon location and, after waiting for

approximately 20 minutes, defendant and another individual

arrived and the three entered a basement apartment. Although the

detectives did not observe the transaction, the CI testified

that, while in the apartment, defendant gave her a bag of heroin

in return for which she gave defendant the marked buy money. 

After exiting the apartment, the CI returned to the police

vehicle and turned over a bag containing a substance that was

later determined to be heroin. A search of the CI upon arrival

back at the police station again revealed no drugs or money on

her person. 

Defendant challenges the verdict as contrary to the weight

of the evidence, specifically arguing that the testimony of the

CI – the only witness to identify him as the individual who sold

the heroin — was so inherently suspect as to be unworthy of

belief. Although the CI has a lengthy criminal history and

agreed to assist authorities in the controlled drug buy in

exchange for dismissal of an outstanding drug charge against her,

these issues were fully explored on cross-examination and

presented to the jury for its consideration (see People v Gibson,

121 AD3d 1416, 1418 [2014], lv denied 24 NY3d 1119 [2015]; People

v Jones, 101 AD3d 1241, 1242 [2012], lv denied 21 NY3d 944

[2013]; People v Wilson, 100 AD3d 1045, 1046 [2012], lv denied 22

NY3d 998 [2013]; People v Rose, 79 AD3d 1365, 1366-1367 [2010]). 

Moreover, the CI's testimony was consistent and corroborated by

the detectives who had her under constant surveillance and

confirmed that she entered the apartment with the buy money and

without any contraband but exited it with heroin (see People v

Heaney, 75 AD3d 836, 837 [2010], lv denied 15 NY3d 852 [2010];

People v Golden, 24 AD3d 806, 807 [2005], lvs denied 6 NY3d 812,

813 [2006]). Evaluating the evidence in a neutral light and

deferring to the jury's credibility assessments (see People v

Danielson, 9 NY3d 342, 348-349 [2007]), we find that the jury

gave the evidence the weight it should be accorded (see People v

Gibson, 121 AD3d at 1418; People v Nichol, 121 AD3d 1174, 1177

[2014], lv denied 25 NY3d 1205 [2015]; People v Tisdale, 103 AD3d

987, 988 [2013], lvs denied 21 NY3d 1004, 1010 [2013]; People v

Rose, 79 AD3d at 1367). 
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Defendant's contention that Supreme Court failed to give

adequate cautionary instructions to the jury concerning note

taking is unpreserved for our review (see People v Tubbs, 115

AD3d 1009, 1011-1012 [2014]; People v Schwing, 9 AD3d 685, 686

[2004], lv denied 3 NY3d 742 [2004]; People v Thornton, 4 AD3d

561, 563 [2004], lv denied 2 NY3d 808 [2004]).

Lahtinen, Garry, Rose and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court