People v. McAllister

Jun 8, 2007
Versions:41 A.D.3d 1186
837 N.Y.S.2d 802

Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), rendered December 3, 2004.

The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) and criminal possession of a controlled substance in the fourth degree (§ 220.09 [1]). Defendant failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence (see CPL 470.05 [2]; People v. Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]) and, in any event, defendant‘s contention lacks merit (see generally People v. Bleakley, 69 NY2d 490, 495 [1987]). Also contrary to defendant‘s contention, the verdict is not against the weight of the evidence (see generally id.).

Supreme Court properly refused to suppress the evidence seized from defendant‘s motel room because defendant orally gave the police his consent to search the motel room (see generally People v. Williams, 202 AD2d 976 [1994], lv denied 83 NY2d 916 [1994]). Defendant failed to preserve for our review his further contention that the prosecutor violated the court‘s Sandoval ruling by eliciting facts that the court had ruled inadmissible (see People v. Freeman, 28 AD3d 1161, 1162 [2006], lv denied 7 NY3d 788 [2006]). In any event, the alleged violation by the prosecutor with respect to the court‘s Sandoval ruling is harmless error (see People v. Grant, 7 NY3d 421, 424-425 [2006]).

Defendant also failed to preserve for our review his contentions with respect to the jury charge (see CPL 470.05 [2]; People v. Meagher, 4 AD3d 828, 829 [2004], lv denied 3 NY3d 644 [2004]), and he failed to preserve for our review his contention that the indictment was duplicitous (see CPL 470.05 [2]; People v. Dann, 17 AD3d 1152 [2005], lv denied 5 NY3d 761 [2005]). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Finally, defendant was not deprived of effective assistance of counsel (see generally People v. Baldi, 54 NY2d 137, 147 [1981]), and the sentence is not unduly harsh or severe.

Present—Scudder, P.J., Gorski, Martoche, Smith and Green, JJ.