        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
                                 -2-                           740
                                                         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
