People v. Perez

Judgment, Supreme Court, Bronx County (Martin Marcus, J., at trial and sentence), rendered January 31, 1991, convicting defendant, after jury trial, of criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to two concurrent terms of bVi to 11 years, unanimously affirmed.

To facilitate a drug sale, Juan Mangual told a police officer to see the defendant. The officer asked for "two” and defendant handed him one glassine envelope of heroin. Shortly thereafter, the field team arrested the defendant and Mangual.

Defendant contends that the People failed to prove beyond a reasonable doubt that he was guilty of the crimes charged. We disagree. The officer identified the defendant after the sale. Although he failed to notice that the defendant wore an earring, the significance of the failure was within the province of the jury (see, People v Mosley, 112 AD2d 812, 815, affd 67 NY2d 985). Similarly, it was for the jury to weigh the officer’s *563inconsistent testimony about what the defendant did with the brown paper bag which contained the heroin (see, People v Trinidad, 177 AD2d 286, lv denied 79 NY2d 865). Lastly, that defendant did not have the drugs or money on him approximately one half hour after the sale when he was arrested does not negate his guilt (People v Walker, 186 AD2d 62). Concur— Sullivan, J. P., Carro, Wallach, Asch and Rubin, JJ.