Opinion
02-10-2017
The PEOPLE of the State of New York, Respondent, v. Shakeymo A. HODGE, Defendant–Appellant. (Appeal No. 1.)
Cara A. Waldman, Fairport, for Defendant–Appellant. Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), for Respondent.
Cara A. Waldman, Fairport, for Defendant–Appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, DeJOSEPH, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:In appeal No.1, defendant appeals from a judgment convicting him upon a jury verdict of one count each of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and criminal sale of a controlled substance in the third degree (§ 220.39[1] ) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of one count each of those crimes.Defendant contends in appeal No. 1 that County Court failed to make a sufficient inquiry into juror misconduct when informed that several jurors had been discussing defendant's guilt or innocence before deliberations had begun (see generally People v. Buford, 69 N.Y.2d 290, 299, 514 N.Y.S.2d 191, 506 N.E.2d 901 ). Defendant failed to preserve that contention for our review, inasmuch as he failed to object to the scope of the court's inquiry when the court individually examined all 14 jurors in response to that allegation (see People v. Hicks, 6 N.Y.3d 737, 739, 810 N.Y.S.2d 396, 843 N.E.2d 1136 ; People v. Viera, 75 A.D.3d 926, 927, 904 N.Y.S.2d 922 ). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). We reject defendant's contention that the court abused its discretion in denying his motion for a mistrial based upon the alleged juror misconduct inasmuch as the court conducted a probing and tactful inquiry sufficient under Buford (69 N.Y.2d at 299, 514 N.Y.S.2d 191, 506 N.E.2d 901 ).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we reject defendant's further contention in appeal No. 1 that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). The evidence at trial established that defendant possessed cocaine and sold it to a confidential informant in a controlled buy transaction. The fact that the only eyewitness to the sale, i.e., the confidential informant, was cooperating with law enforcement in exchange for a lenient sentence on charges of driving while intoxicated does not render his testimony unworthy of belief, and we accord deference to the credibility determinations of the jury (see People v. Tuszynski, 120 A.D.3d 1568, 1568–1569, 993 N.Y.S.2d 402, lv. denied 25 N.Y.3d 954, 7 N.Y.S.3d 283, 30 N.E.3d 174 ; see also People v. Bausano, 122 A.D.3d 1341, 1342, 996 N.Y.S.2d 834, lv. denied 25 N.Y.3d 1069, 12 N.Y.S.3d 620, 34 N.E.3d 371 ).
Finally, we reject defendant's challenge in each appeal to the severity of the sentence.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.