People v Santiago, 2011 NY Slip Op 01705 [82 AD3d 479]

March 8, 2011

Appellate Division, First Department

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Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), for respondent.

Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered October 9, 2009, as amended November 17, 2009, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second drug felony offender whose prior felony conviction was a violent felony, to a term of nine years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to six years, and otherwise affirmed.

The verdict was not against the weight of the evidence ( see People v Danielson , 9 NY3d 342 , 348 [2007]). Defendant claimed the bag he sold to an undercover officer did not contain cocaine but rather “beat” cocaine. There is no basis for disturbing the jury’s credibility determination rejecting that claim.

We find the sentence excessive to the extent indicated. Concur—Andrias, J.P., Catterson, Moskowitz, Abdus-Salaam and RomÁn, JJ..