Opinion
No. KA 08-00346.
March 20, 2009.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered September 4, 2007. The judgment convicted defendant, upon a nonjury verdict, of criminal possession of a controlled substance in the seventh degree and unlawful possession of marihuana.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
Before: Scudder, P.J., Smith, Peradotto, Carni and Green, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) and unlawful possession of marihuana (§ 221.05). Defendant made only a general motion for a trial order of dismissal, and thus failed to preserve for our review his challenge to the legal sufficiency of the evidence ( see People v Gray, 86 NY2d 10, 19). In any event, defendant's challenge lacks merit ( see generally People v Bleakley, 69 NY2d 490, 495), and we therefore reject the further contention of defendant that defense counsel was ineffective for failing to preserve that challenge for our review ( see People v Caban, 5 NY3d 143, 152; People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702). Viewing the evidence in light of the elements of the crimes in this nonjury trial ( see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 NY2d at 495).