           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

589
KA 10-00727
PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

TONY L. SPENCER, DEFENDANT-APPELLANT.


TIMOTHY J. BRENNAN, AUBURN, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Thomas G.
Leone, J.), rendered October 8, 2009. The judgment convicted
defendant, upon a jury verdict, of criminal sale of a controlled
substance in the third degree (four counts) and criminal possession of
a controlled substance in the third degree (four counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of four counts each of criminal sale of a
controlled substance in the third degree (Penal Law § 220.39 [1]) and
criminal possession of a controlled substance in the third degree (§
220.16 [1]). Contrary to defendant’s contention, County Court
properly granted the People’s request to amend the indictment to
delete language identifying the buyer as an undercover police officer.
That amendment “did not change the theory of the prosecution, nor did
it ‘otherwise tend to prejudice the defendant on the merits’ ” (People
v Brink, 31 AD3d 1139, 1140, lv denied 7 NY3d 865, quoting CPL 200.70
[1]; see People v Waxter, 268 AD2d 899, 900; People v Brown, 196 AD2d
428, 429-430, lv denied 82 NY2d 804). We further conclude that the
court’s imposition of consecutive sentences is not unduly harsh or
severe.




Entered:    April 29, 2011                         Patricia L. Morgan
                                                   Clerk of the Court
