Opinion
2012-07-5
The PEOPLE, etc., respondent, v. Rashief BULLOCK, appellant.
Lynn W.L. Fahey, New York, N.Y. (Erin R. Collins and Kendra Hutchinson of counsel), for appellant, and appellant pro se. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Michael Shollar of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Erin R. Collins and Kendra Hutchinson of counsel), for appellant, and appellant pro se. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Michael Shollar of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney, J.), rendered December 14, 2009, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree, and perjury in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention in his pro se supplemental brief that the police found narcotics on his person as the result of an illegal warrantless “strip search” is unpreserved for appellate review ( see People v. Wellington, 84 A.D.3d 984, 985, 923 N.Y.S.2d 581;People v. Fleming, 65 A.D.3d 702, 884 N.Y.S.2d 477;People v. Garcia, 284 A.D.2d 106, 726 N.Y.S.2d 27). The defendant's failure to raise and litigate the issue during the pretrial suppression hearing, and not a failure of proof by the People, resulted in evidence of the legality of the search remaining undeveloped and unaddressed (see People v. Cabrera, 61 A.D.3d 884, 877 N.Y.S.2d 213).
The defendant's contention that the evidence of his offer or agreement to sell the narcotics was legally insufficient to support his conviction of criminal sale of a controlled substance in the third degree is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish this element of criminal sale of a controlled substance in the third degree beyond a reasonable doubt ( seePenal Law § 220.00 [1]; People v. Samuels, 99 N.Y.2d 20, 24, 750 N.Y.S.2d 828, 780 N.E.2d 513;People v. Taylor, 94 N.Y.2d 910, 911, 707 N.Y.S.2d 618, 729 N.E.2d 337;People v. Edwards, 304 A.D.2d 367, 367–368, 758 N.Y.S.2d 35). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The record as a whole demonstrates that the defendant received meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
The defendant's remaining contention, that the conviction of criminal possession of a controlled substance in the third degree should be vacated, and the indictment on that count dismissed on the basis that it was “factually related” to the criminal sale of a controlled substance in the third degree, is without merit, since there is no basis to vacate the latter conviction ( People v. Brown, 230 A.D.2d 917, 918, 647 N.Y.S.2d 26,mod90 N.Y.2d 872, 661 N.Y.S.2d 596, 684 N.E.2d 26 [internal quotation marks omitted] ).