Opinion
KA 02-00937.
Decided April 30, 2004.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered April 5, 2002. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the fourth degree and driving without a seatbelt.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (TIMOTHY P. DONAHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (MARGARET A. JONES OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: GREEN, J.P., WISNER, HURLBUTT, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment entered upon a jury verdict convicting him of, inter alia, criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09). Contrary to the contention of defendant, County Court did not abuse its discretion in denying his motions seeking a mistrial based on alleged misconduct by two police officers who testified for the prosecution ( see generally People v. Ortiz, 54 N.Y.2d 288, 292). Defendant's further contentions that the court erred in projecting the jury charge on the wall while orally delivering it and in failing to give a cautionary instruction prior to deliberations regarding notes taken by the jurors are not preserved for our review ( see CPL 470.05), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see 470.15 [6] [a]; People v. Burlew, 261 A.D.2d 828, lv denied 93 N.Y.2d 1015). Finally, the contention of defendant that he received ineffective assistance of counsel rests on matters outside the record and thus is not properly before us ( see People v. Logan, 2 A.D.3d 1392; People v. Lopez, 2 A.D.3d 234).