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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ELLOHEIM MILLER, Also Known as ELLEHEIM MILLER, Appellant.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence ( see People v. Bleakley, 69 NY2d 490). Issues concerning the credibility of witnesses, as well as defendant's opportunity to divest himself of the buy money, were properly considered by the jury and there is no basis for disturbing its determinations ( see People v. Gaimari, 176 NY 84, 94).

However, defendant should not have been convicted of two possession counts based on his possession of a single bag containing both cocaine and heroin ( see People v. Martin, 153 AD2d 807, 808, lv denied 74 NY2d 950). We therefore modify accordingly.

We perceive no basis for reducing the sentence.

We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief.

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PEOPLE v. MILLER
(Feb 15, 2005)