People v. Casio

Judgment, Supreme Court, New York County (Robert M. Haft, J.), rendered March 9, 1990, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 10 to 20 years, unanimously affirmed. A police officer using binoculars observed defendant delivering vials to an unidentified individual on a street corner in exchange for money, and thereafter retrieve a brown paper bag from around the corner near the side of a building. When the police backup team approached, defendant threw the bag to the ground. After arresting defendant and seizing the paper bag, the backup officer found that it contained 13 vials of cocaine. Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference (People v Malizia, 62 NY2d 755, cert denied 469 US 932), defendant’s intent to sell the cocaine recovered from him was provéd beyond a reasonable doubt (see, People v Nickens, 121 AD2d 199, lv denied 72 NY2d 960). Although the alleged buyer was not apprehended, it was not necessary for the jury to find that a sale took place in order to find that defendant possessed the drugs with intent to sell. [413] Nor were the alleged sale and the number of vials recovered from defendant the only evidence of intent to sell. In addition, there was defendant’s secreting of the drugs in a nearby stash and his dropping the bag containing the drugs upon the approach of the backup team. Defendant’s other contention that the sentence is excessive is without merit in view of his five prior felony convictions. Concur — Sullivan, J. P., Carro, Milonas and Kupferman, JJ.