People v. Cummings

Judgment of the Supreme Court, New York County (Edward McLaughlin, J.), rendered on November 25, 1987, convicting defendant, after a nonjury trial, of fifth degree criminal sale of a controlled substance and sentencing him to a prison term of 2 to 4 years, is unanimously affirmed.

Defendant was charged with one count of third degree criminal sale of a controlled substance arising out of a 1986 "buy-and-bust” operation on the Lower East Side. The case proceeded to a bench trial resulting in a guilty verdict of fifth degree criminal sale of a controlled substance, a lesser included offense.

Defendant’s contention that he is entitled to a reversal and dismissal of the indictment because the court’s acquittal of third degree criminal sale of a controlled substance and conviction on the lesser included offense of fifth degree criminal sale of a controlled substance rendered the verdict repugnant is not preserved for appellate review as a matter of law (People v Stahl, 53 1048, 1050; People v Barry, 100 AD2d 803 , 804). Moreover, it is apparent that the trial court, in an exercise of mercy, convicted defendant of the lesser included offense, not repugnant when viewed in light of the proof adduced (see, People v Montgomery, 116 AD2d 669 , 670; see also, People v Tucker, 55 NY2d 1 , 6, rearg denied 55 NY2d 1039 ).

Defendant’s other contention, that he was unfairly deprived