People v. Padilla — 190 A.D.2d 639

Majority

p. 639

The People of the State of New York, Respondent, v Luis Padilla, Appellant.

— Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered April 10, 1991, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 Vi to 9 years, unanimously affirmed.

The evidence was not insufficient (People v Contes, 60 NY2d 620 , 621), and the verdict was not against the weight of the evidence (People v Bleakley, 69 NY2d 490 , 495). The credibility of the testimony of the undercover officer and the accuracy of his identification of defendant were for the jury to resolve (People v Jenkins, 164 AD2d 770 , 770-771, lv denied 76 NY2d 894 ). The officer’s one minute encounter with defendant provided an adequate opportunity to observe defendant’s appearance (cf, People v Mosley, 112 AD2d 812 , affd 67 NY2d 985 ), and his reliability was assured by the drive-by identification minutes later (see, People v Roberts, 79 NY2d 964 , 966). The failure to recover the prerecorded buy money is not dispositive

p. 640

(People v Bobbitt, 180 AD2d 489 , lv denied 79 NY2d 1046 ). The issues raised concerning the prosecutor’s summation are not preserved (People v Wright, 172 AD2d 293 , 294, lv denied 77 NY2d 1003 ), and in any event, the remarks were an appropriate response to the defense attack on the credibility of the police witnesses (see, People v Rodriguez, 159 AD2d 356 , 357, lv denied 76 NY2d 795 ) and fair comment on the evidence. Defendant’s challenge to his sentence is not preserved (People v Ingram, 67 NY2d 897 , 899; People v Harris, 110 AD2d 660 ), and in any event, his constitutional arguments have been repeatedly rejected (see, e.g., People v Vasquez, 104 AD2d 1012 ; People v DiMarco, 149 AD2d 612 ; People v Pacheco, 73 AD2d 370 , affd on other grounds 53 NY2d 663 ), and recent constitutional jurisprudence does not suggest that departure from these holdings is warranted (see, e.g., Parke v Raley, — US —, 121 L Ed 2d 391 , 402; Harmelin v Michigan, 501 US —, —, 111 S Ct 2680 , 2701-2702). Concur — Milonas, J. P., Rosenberger, Kupferman, Asch and Kassal, JJ.

Cases cited

People v. Contes 60 NY2d 620 N.Y. 1983-09-01 at 621 p. 639
People v. Bleakley 69 NY2d 490 N.Y. 1987-05-07 at 495 p. 639
People v. Jenkins 164 AD2d 770 N.Y. App. Div. 1990-08-02 at 770-771 p. 639
People v. Mosley 112 AD2d 812 N.Y. App. Div. 1985-08-01 p. 639
People v. Mosley 67 NY2d 985 N.Y. 1986-05-08 p. 639
People v. Roberts 79 NY2d 964 N.Y. 1992-04-02 at 966 p. 639
People v. Bobbitt 180 AD2d 489 N.Y. App. Div. 1992-02-11 p. 640
People v. Rodriguez 159 AD2d 356 N.Y. App. Div. 1990-03-20 at 357 p. 640
People v. Ingram 67 NY2d 897 N.Y. 1986-04-01 at 899 p. 640
People v. Vasquez 104 AD2d 1012 N.Y. App. Div. 1984-10-22 p. 640
People v. DiMarco 149 AD2d 612 N.Y. App. Div. 1989-04-17 p. 640
People v. Pacheco 73 AD2d 370 N.Y. App. Div. 1980-03-24 p. 640
People v. Pacheco 53 NY2d 663 N.Y. 1981-03-26 p. 640
Parke v. Raley 121 L Ed 2d 391 SCOTUS 1992-12-01 at 402 p. 640
Harmelin v. Michigan 111 S Ct 2680 SCOTUS 1991-06-27 at 2701-2702 p. 640