                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 29, 2015                   105987
________________________________

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

CHAD RICHARDS,
                    Appellant.
________________________________


Calendar Date:   November 12, 2014

Before:   McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


     Thomas J. Melanson, Kingston, for appellant.

      D. Holley Carnright, District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel), for respondent.

                             __________


Clark, J.

      Appeal from a judgment of the Supreme Court (Breslin, J.),
rendered March 29, 2013 in Ulster County, upon a verdict
convicting defendant of the crimes of criminal possession of a
controlled substance in the third degree (two counts) and
criminal sale of a controlled substance in the third degree (two
counts).

      After a confidential informant (hereinafter CI) made two
controlled buys of cocaine from him, defendant was charged in an
indictment with two counts of criminal possession of a controlled
substance in the third degree and two counts of criminal sale of
a controlled substance in the third degree. Defendant was found
guilty as charged following a jury trial. Supreme Court
sentenced defendant, as a second felony offender previously
                              -2-                105987

convicted of a violent felony, to an aggregate prison term of 20
years to be followed by three years of postrelease supervision.
Defendant now appeals.

      We affirm. Contrary to defendant's contention, the jury's
verdict was not against the weight of the evidence. The trial
evidence established that investigators employed the CI, with
whom they had worked dozens of times in the past and found to be
reliable, to engage in two controlled buys from defendant on
November 8, 2011 and November 9, 2011. The CI set up the
purchases via recorded telephone calls, and an investigator who
knew defendant and recognized his voice testified that it was he
who answered the calls. Investigators searched the CI prior to
conducting the buys to ensure that she had no contraband, and the
CI testified that she purchased a substance later identified as
cocaine from defendant on both occasions. The CI was also
accompanied by undercover officers to both buys and, although the
officers did not witness the actual handoff of cocaine, they
observed the transactions from a distance and retrieved cocaine
from the CI after the transactions had occurred. Defendant was
detained after the second buy and was found to have the
prerecorded buy money for both purchases in his possession.
Defendant asserts that the CI gave unreliable testimony and that
neither she nor the various officers involved in the buy
operations were worthy of belief because they were all motivated
to ensure that the target of the investigation – namely,
defendant – was identified as the seller. It suffices to say
that those issues were explored during the trial by defense
counsel and, according "appropriate deference to the jury's
ability to view the witnesses and determine their credibility, we
find no basis to disturb the verdict as against the weight of the
evidence" (People v Tisdale, 103 AD3d 987, 988 [2013], lvs
denied 21 NY3d 1004, 1010 [2013]; see People v Rose, 79 AD3d
1365, 1366-1367 [2010]).

      Defendant further contends that he was deprived of a fair
trial due to prosecutorial misconduct during the People's
summation, an issue that is unpreserved for our review due to his
failure to object to the offending comments at trial (see People
v VanVorst, 118 AD3d 1035, 1037 [2014]; People v Head, 90 AD3d
1157, 1158 [2011]). In any event, most of the statements that
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defendant now complains about were fair responses to the defense
summation that attacked the credibility of the CI and questioned
various actions or inactions on the part of her and the
undercover officers (see People v James, 90 AD3d 1249, 1251
[2011], lv denied 18 NY3d 958 [2012]; People v Molina, 79 AD3d
1371, 1377 [2010], lv denied 16 NY3d 861 [2011]; People v
Valderama, 25 AD3d 819, 821 [2006], lv denied 6 NY3d 854 [2006]).
The People did improperly refer to defendant as "a cocaine
peddler" who made money off of "people with faces like [the
jurors]," but Supreme Court acted on its own initiative by
immediately striking those remarks from the record and
instructing the jury to disregard them. Thus, we cannot say that
the comments of the People in summation constituted a flagrant
and pervasive pattern of prosecutorial misconduct that deprived
defendant of a fair trial (see People v VanVorst, 118 AD3d at
1037; People v White, 79 AD3d 1460, 1464-1465 [2010], lvs
denied 17 NY3d 791, 803 [2011]).

      Lastly, in light of defendant's extensive prior criminal
history, we find no abuse of discretion or extraordinary
circumstances that would warrant a reduction of his sentence in
the interest of justice (see People v Tisdale, 103 AD3d at 989).

     McCarthy, J.P., Egan Jr. and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
