                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   October 30, 2014                105776
                                                       105955
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

GARY WATKINS, Also Known
   as B WAR,
                    Appellant.
________________________________


Calendar Date:   September 10, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Lynch and Devine, JJ.

                             __________


     Theodore J. Stein, Woodstock, for appellant.

      D. Holley Carnright, District Attorney, Kingston (Carly
Wolfrom of counsel), for respondent.

                             __________


McCarthy, J.

      Appeals (1) from a judgment of the County Court of Ulster
County (Williams, J.), rendered December 3, 2012, upon a verdict
convicting defendant of the crimes of criminal sale of a
controlled substance in the third degree (five counts) and
criminal possession of a controlled substance in the third degree
(five counts), (2) from a judgment of said court, rendered
February 20, 2013, which resentenced defendant following said
convictions, and (3) from a judgment of said court, rendered
February 20, 2013, convicting defendant upon his plea of guilty
of the crime of attempted assault in the second degree.
                               -2-                105776
                                                  105955

      Defendant was indicted after an undercover officer made
five controlled buys of crack cocaine on two occasions from
defendant directly and on three other occasions from codefendant
Isiah Pickett. At trial, a jury found defendant guilty of five
counts each of criminal sale of a controlled substance in the
third degree and criminal possession of a controlled substance in
the third degree. County Court sentenced him, as a second felony
offender, to an aggregate prison term of 15 years, followed by
three years of postrelease supervision.1

      In a separate matter, defendant was charged in a four-count
indictment pertaining to an incident where he assaulted a man
with a tire iron. After his trial on the drug charges, defendant
pleaded guilty to the reduced charge of attempted assault in the
second degree in satisfaction of that indictment. County Court
imposed the agreed-upon sentence of 2 to 4 years in prison, to be
served concurrently with his sentence on the drug charges.
Defendant appeals.

      The jury's verdict on the 10 drug counts was not contrary
to the weight of the evidence. Defendant argues that the
evidence did not adequately establish his identity as the person
involved in any of these transactions, or that he acted in
concert with Pickett for three alleged sales. The undercover
officer testified and identified defendant as the individual who
personally sold him crack cocaine on two occasions. The officer
also testified regarding numerous phone calls with defendant to
arrange sales of cocaine. During the calls, the undercover
officer or a confidential informant referred to defendant by his
street name. After three of those calls, wherein defendant
indicated that he was not in the area but "his people" were
available or Pickett was holding his supply, the officer
proceeded to the selected location and engaged in drug purchases
from Pickett at the price and amount agreed upon with defendant
(see Penal Law § 20.00). Audio recordings of the phone calls and


     1
        County Court later resentenced defendant to reflect the
correct counts of the indictment, but the aggregate sentence
remained the same.
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                                                   105955

the drug transactions themselves were entered into evidence and
played for the jury. Two other police officers testified that
they knew defendant's voice from previous contact and recognized
the voice on the phone as defendant's. This evidence adequately
established that defendant personally possessed and sold cocaine
on two occasions, and that he acted in concert with Pickett to
possess and sell cocaine on three other occasions (see People v
Wilkins, 75 AD3d 847, 848 [2010], lv denied 15 NY3d 857 [2010];
People v Vargas, 72 AD3d 1114, 1117-1118 [2010], lv denied 15
NY3d 758 [2010]; People v Wilson, 71 AD3d 1333, 1334-1335
[2010]).

      County Court gave the jury a missing witness charge
concerning the confidential informant. Defendant did not
preserve any argument concerning the wording of that charge
because he did not object to the charge that was given or request
different language (see People v Hawkins, 110 AD3d 1242, 1244
[2013], lv denied 22 NY3d 1041 [2013]; People v Burdick, 266 AD2d
711, 713 [1999]).

      Defendant asserts that he was denied the effective
assistance of counsel in his assault matter. To the extent that
his claim relates to the voluntariness of his plea, the record
does not indicate that he preserved the argument by making an
appropriate postallocution motion; to the extent that his claim
is unrelated to the voluntariness of the plea, he forfeited such
claim by pleading guilty (see People v Lohnes, 112 AD3d 1148,
1150 [2013]).

     Lahtinen, J.P., Rose, Lynch and Devine, JJ., concur.


     ORDERED that the judgments are affirmed.



                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
