Opinion
2013-03-15
The PEOPLE of the State of New York, Respondent, v. Brandy ALEXANDER, Defendant–Appellant.
Kimberly J. Czapranski, Interim Conflict Defender, Rochester (Joseph D. Waldorf of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
Kimberly J. Czapranski, Interim Conflict Defender, Rochester (Joseph D. Waldorf of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting her upon a jury verdict of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[12] ), criminal possession of a controlled substance in the seventh degree (§ 220.03) and two counts of criminally using drug paraphernalia in the second degree (§ 220.50[2], [3] ). Defendant contends that County Court erred in designating the second-drawn juror as foreperson after the original foreperson asked to be relieved of that responsibility, and that preservation of her contention is not required because the court thereby committed a mode of proceedings error. Contrary to defendant's contention, such a designation, even if erroneous, would not constitute a mode of proceedings error ( see People v. Marchese, 261 A.D.2d 104, 104, 689 N.Y.S.2d 91,lv. denied93 N.Y.2d 1022, 697 N.Y.S.2d 581, 719 N.E.2d 942;see generally People v. Agramonte, 87 N.Y.2d 765, 769–770, 642 N.Y.S.2d 594, 665 N.E.2d 164). In any event, defendant'scontention that the court erred in designating the second-drawn juror as foreperson is without merit ( see People v. Burgess, 280 A.D.2d 264, 265, 719 N.Y.S.2d 649,lv. denied96 N.Y.2d 798, 726 N.Y.S.2d 375, 750 N.E.2d 77). Viewing the evidence, the law and the circumstances of this case, in totality and at the time of representation, we further conclude that defendant received meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Contrary to the further contention of defendant, the court properly denied her severance motion. Defendant failed to preserve for our review her contention that the court erred in denying her motion to sever the counts against defendant and her codefendant, which were joined in a single indictment ( seeCPL 470.05[2]; cf. People v. Chestnut, 19 N.Y.3d 606, 611 n. 2, 950 N.Y.S.2d 287, 973 N.E.2d 697). In any event, we conclude that her contention lacks merit ( see People v. Boyd, 272 A.D.2d 898, 898, 709 N.Y.S.2d 269,lv. denied95 N.Y.2d 850, 714 N.Y.S.2d 1, 736 N.E.2d 862;see also CPL 40.10[2]; 200.40[1] ). We also reject the contention of defendant that the court abused its discretion in denying her motion to sever her trial from that of her codefendant ( see People v. Clark, 66 A.D.3d 1489, 1489–1490, 885 N.Y.S.2d 797,lv. denied13 N.Y.3d 906, 895 N.Y.S.2d 320, 922 N.E.2d 909).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.