The People of the State of New York, Respondent, v. Virgil Davis, Appellant

The People of the State of New York, Respondent, v Virgil Davis, Appellant. [602 NYS2d 8] [MAJORITY] Judgment, Supreme Court, New York County (Clifford Scott, J.), rendered December 19, 1990, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 8 Vs to 25 years, unanimously modified as a matter of discretion in the interest of justice, to reduce the sentence to a term of 5 to 15 years, and otherwise affirmed. Viewing the evidence in the light most favorable to the People (People v Contes, 60 NY2d 620, 621) that following the transaction the undercover officer had radioed a detailed and accurate description of defendant which was confirmed by the arresting officer, that pre-recorded buy money was recovered from defendant, and that he was positively identified by the undercover officer in a drive-by immediately following the arrest and again in court, defendant’s identity as the seller of the crack cocaine was overwhelmingly established at trial. However, in light of the fact that defendant is 53 years old and was convicted for selling only two vials of crack cocaine to the undercover officer, we find the sentence excessive to the extent indicated. Defendant’s other claims are unpreserved and without merit. Concur—Sullivan, J. P., Carro, Ellerin, Kassal and Nardelli, JJ.