SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

740 

KA 12-01617 

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

DONTA ALBERT, DEFENDANT-APPELLANT.

 

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ROMANA A. LAVALAS

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Onondaga County Court (Donald E.

Todd, A.J.), rendered May 8, 2012. The judgment convicted defendant,

upon a jury verdict, of criminal sale of a controlled substance in the

third degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

following a jury trial of criminal sale of a controlled substance in

the third degree (Penal Law § 220.39 [1]). Viewing the evidence in

light of the elements of the crime as charged to the jury (see People

v Danielson, 9 NY3d 342, 349), we reject defendant’s contention that

the verdict is against the weight of the evidence (see generally

People v Bleakley, 69 NY2d 490, 495). Two police officers testified

at trial that they were on routine patrol in Syracuse when they

observed defendant, whom they knew well from prior dealings, engage in

what appeared to be a hand-to-hand drug transaction with another

person. Following the transaction, defendant walked away from the

scene, and the officers stopped the other person, who readily admitted

that he had just purchased crack cocaine. The buyer said that the man

who sold him cocaine gave him a telephone number to call if he needed

more drugs. The officers wrote down that number and looked for

defendant, who could not immediately be found. When one of the

officers arrested defendant five days later, the officer dialed the

number given to him by the drug purchaser, and a cell phone in

defendant’s possession began to ring. The officer ended the call and

dialed the number a second time, and the phone rang again. At trial,

both officers identified defendant at trial as the person they saw

engage in the hand-to-hand transaction. Based on our independent

review of the record, we conclude that, even assuming, arguendo, that

a different verdict would not have been unreasonable, it cannot be
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KA 12-01617 

said that the jurors failed to give the evidence the weight it should

be accorded (see People v Ohse, 114 AD3d 1285, 1286-1287, lv denied 23

NY3d 1041; see generally Bleakley, 69 NY2d at 495).

Defendant failed to preserve for our review his contention that

County Court erred in allowing the police witnesses to testify that

defendant’s neighborhood, where the drug transaction took place, had

high levels of criminal activity, and that the police regularly

patrolled the area upon the request of the management of a nearby

apartment complex (see CPL 470.05 [2]; People v Permant, 268 AD2d 230,

230, lv denied 94 NY2d 905). In any event, the court properly allowed

that testimony because it tended to explain the presence and conduct

of the police (see People v Leak, 66 AD3d 403, 404, lv denied 14 NY3d

802; People v Grzebyk, 253 AD2d 469, 469, lv denied 92 NY2d 925). 

Finally, we conclude that the sentence is not unduly harsh or severe. 

Entered: June 19, 2015 Frances E. Cafarell

Clerk of the Court