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People v. Davis

202 A.D.2d 325 Court N.Y. App. Div. Decision date 1994-03-22 English

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The People of the State of New York, Respondent, v Joyce Davis, Appellant.
[609 NYS2d 212]

—Judgment, Supreme Court, New York County (Bernard Fried, J.), rendered May 13, 1992, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the fifth degree and criminal possession of a controlled substance in the seventh degree, and sentencing her, as a second felony offender, to a term of 2 Vi to 5 years, and time served, respectively, unanimously affirmed.

Viewing the evidence in a light most favorable to the People and giving them the benefit of every reasonable inference (People v Malizia, 62 NY2d 755 , 757, cert denied 469 US 932 ), defendant’s guilt was proven beyond a reasonable doubt by

p. 326
legally sufficient evidence that defendant "steered” an undercover officer to the codefendant for the purchase of valium (see, People v Ray, 188 AD2d 288 , 289, lv denied 81 NY2d 845 ). The fact that neither the prerecorded buy money nor drugs were found on defendant does not negate her accessorial liability under Penal Law § 20.00 (People v Smith, 179 AD2d 355 , lv denied 79 NY2d 953 ). Moreover, upon an independent review of the facts, we find that the verdict was not against the weight of the evidence (People v Bleakley, 69 NY2d 490 ).

Defendant’s claim that the court’s instructions near the end of its charge that the jury "should make every effort to come to [an] agreement which speaks the truth as far as this case is concerned” diluted the People’s burden of proof is not preserved for review as a matter of law (CPL 470.05 [2]; People v Ellis, 184 AD2d 307 , 308, lv denied 80 NY2d 929 ). In any event, were we to review the claim in the interest of justice, we would find that the charge as a whole conveyed the appropriate legal standards concerning the People’s burden of proof (see, People v Rosa, 187 AD2d 355 , 356, lv denied 81 NY2d 892 ). Concur — Rosenberger, J. P., Kupferman, Rubin and Williams, JJ.

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