People v. Simmons — 1 A.D.2d 162

Majority

p. 162

The People of the State of New York, Respondent, v Erik Simmons, Appellant.

[766 NYS2d 843]

Judgment, Supreme Court, New York County (Lewis Stone, J.), rendered February 21, 2002, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to concurrent terms of 4V2 to 9 years and 1 year, respectively, unanimously affirmed.

p. 163

The verdict was based on legally sufficient evidence (see People v Bello, 92 NY2d 523 [1998]). The evidence, including the recovery of buy money from defendant and his statement to the police, permitted a reasonable inference that defendant was a participant in the drug transaction, whose function was to hold the proceeds of the sale.

The court properly denied defendant’s request for a missing witness charge as to a police sergeant involved in the process of vouchering evidence. The court correctly determined that the request was untimely and that the witness’s testimony would have been cumulative (People v Gonzalez, 68 NY2d 424 , 428 [1986]).

We have considered and rejected defendant’s remaining claims. Concur—Andrias, J.P., Ellerin, Williams, Lerner and Gonzalez, JJ.

Cases cited

People v. Bello 92 NY2d 523 N.Y. 1998-12-22 p. 163
People v. Gonzalez 68 NY2d 424 N.Y. 1986-11-25 at 428 p. 163