Opinion
2012-06-15
The PEOPLE of the State of New York, Respondent, v. Jeffrey D. FINEOUT, Defendant–Appellant.
William G. Pixley, Rochester, for Defendant–Appellant. Cindy F. Intschert, District Attorney, Watertown (Harmony A. Healy of Counsel), for Respondent.
William G. Pixley, Rochester, for Defendant–Appellant. Cindy F. Intschert, District Attorney, Watertown (Harmony A. Healy of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and criminal possession of marihuana in the second degree (§ 221.25). At the outset, we note our concern with defendant's contention that the People withheld disclosure of a cooperation agreement of one of their witnesses and subsequently countenanced the perjury of that witness with respect to the existence of the cooperation agreement. That contention, however, involves “matters outside the record on appeal and thus may properly be raised by way of a motion pursuant to CPL article 440” ( People v. Johnson, 88 A.D.3d 1293, 1294, 930 N.Y.S.2d 362;see People v. Ellis, 73 A.D.3d 1433, 1434, 903 N.Y.S.2d 615,lv. denied15 N.Y.3d 851, 909 N.Y.S.2d 28, 935 N.E.2d 820).
Defendant failed to preserve for our review his contention that County Court erred in admitting certain testimony of several police detectives with respect to their investigation of this case. Defendant failed to object to parts of that testimony he now challenges ( seeCPL 470.05[2] ), and otherwise made only a general objection ( see People v. Mobley, 49 A.D.3d 1343, 1344, 853 N.Y.S.2d 812,lv. denied11 N.Y.3d 791, 866 N.Y.S.2d 618, 896 N.E.2d 104) or premised his objection on a theory not advanced on appeal ( see generally People v. Coapman, 90 A.D.3d 1681, 1683, 936 N.Y.S.2d 454,lv. denied18 N.Y.3d 956, 944 N.Y.S.2d 484, 967 N.E.2d 709;People v. Smith, 24 A.D.3d 1253, 1253, 806 N.Y.S.2d 825,lv. denied6 N.Y.3d 818, 812 N.Y.S.2d 458, 845 N.E.2d 1289). In any event, that contention lacks merit inasmuch as the admission of the testimony did not violate an exclusionary rule ( see People v. Alvino, 71 N.Y.2d 233, 241, 525 N.Y.S.2d 7, 519 N.E.2d 808).
The further contention of defendant that the court erred in failing to submit to the jury the issue whether a certain witness was an accomplice as a matter of law is not preserved for our review ( see People v. Blume, 92 A.D.3d 1025, 1027, 937 N.Y.S.2d 724;People v. Freeman, 78 A.D.3d 1505, 1506, 910 N.Y.S.2d 778,lv. denied15 N.Y.3d 952, 917 N.Y.S.2d 112, 942 N.E.2d 323), and we decline to exercise our power to address it as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ). Finally, we reject the contention of defendant that he was denied a fair trial based on cumulative error and “the inattention of defense counsel to those errors.” Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.