Opinion
243 KA 16–00887
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Michael IRIZARRY, also known as Beano, Defendant–Appellant.
TYSON BLUE, MACEDON, FOR DEFENDANT–APPELLANT. MICHAEL IRIZARRY, DEFENDANT–APPELLANT PRO SE. MICHAEL COLARCO, DISTRICT ATTORNEY, LYONS (WENDY EVANS LEHMANN OF COUNSEL), FOR RESPONDENT.
TYSON BLUE, MACEDON, FOR DEFENDANT–APPELLANT.
MICHAEL IRIZARRY, DEFENDANT–APPELLANT PRO SE.
MICHAEL COLARCO, DISTRICT ATTORNEY, LYONS (WENDY EVANS LEHMANN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
On appeal from a judgment convicting him upon a jury verdict of three counts each of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ), and one count of criminal possession of a controlled substance in the seventh degree (§ 220.03), defendant contends that he was denied a fair trial when County Court allowed him to appear in jail garb during the trial. Defendant did not object to his appearance in jail garb at trial, and he thus failed to preserve his contention for our review (see People v. Palmer , 142 A.D.3d 1381, 1383, 38 N.Y.S.3d 654 [4th Dept. 2016], lv denied 28 N.Y.3d 1074, 47 N.Y.S.3d 233, 69 N.E.3d 1029 [2016] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Contrary to defendant's related contention, defense counsel was not ineffective for failing to raise the issue of defendant's jail garb (see generally People v. Turner , 5 N.Y.3d 476, 480, 806 N.Y.S.2d 154, 840 N.E.2d 123 [2005] ).
The court granted in part defendant's motion for a trial order of dismissal based on the legal insufficiency of the evidence, and we reject defendant's further contention that the "denial of the balance of the motion to dismiss constituted reversible error" (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). We note in particular that defendant was acquitted of the seventh count, charging him with criminal possession of a controlled substance in the third degree based on the execution of the search warrant ( Penal Law § 220.16[1] ) and was instead convicted under that count of the lesser included offense that he requested, i.e., criminal possession of a controlled substance in the seventh degree (§ 220.03), a charge that required no showing of the element of intent he had challenged in his motion for a trial order of dismissal. To the extent that defendant challenges the legal sufficiency of the evidence supporting the charge of which he was acquitted, defendant waived that challenge by requesting that the court charge the lesser included offense (see People v. Fancher , 116 A.D.3d 1084, 1085, 984 N.Y.S.2d 174 [3d Dept. 2014] ; People v. Green , 60 A.D.3d 1320, 1321, 875 N.Y.S.2d 390 [4th Dept. 2009], lv denied 12 N.Y.3d 915, 884 N.Y.S.2d 696, 912 N.E.2d 1077 [2009] ). In any event, " CPL 290.10 ‘does not contemplate the granting of a trial order dismissing a count of an indictment when legally sufficient evidence exists to support a lesser included offense under that count’ " ( People v. Vaughan , 48 A.D.3d 1069, 1070, 850 N.Y.S.2d 735 [4th Dept. 2008], lv denied 10 N.Y.3d 845, 859 N.Y.S.2d 404, 889 N.E.2d 91 [2008], cert denied 555 U.S. 910, 129 S.Ct. 252, 172 L.Ed.2d 190 [2008] ).
Defendant failed to preserve for our review his contention that the People did not establish an adequate chain of custody with respect to the drugs inasmuch as he did not object to their admission in evidence (see People v. Alexander , 48 A.D.3d 1225, 1226, 851 N.Y.S.2d 807 [4th Dept. 2008], lv denied 10 N.Y.3d 859, 860 N.Y.S.2d 485, 890 N.E.2d 248 [2008] ). In any event, "[t]he testimony presented at the trial sufficiently established the authenticity of that evidence through reasonable assurances of identity and unchanged condition" ( People v. Washington , 39 A.D.3d 1228, 1230, 834 N.Y.S.2d 407 [4th Dept. 2007], lv denied 9 N.Y.3d 870, 840 N.Y.S.2d 899, 872 N.E.2d 1205 [2007] [internal quotation marks omitted]; see People v. Julian , 41 N.Y.2d 340, 342–343, 392 N.Y.S.2d 610, 360 N.E.2d 1310 [1977] ), "and thus any alleged gaps in the chain of custody went to the weight of the evidence, not its admissibility" ( People v. Kennedy , 78 A.D.3d 1477, 1478, 910 N.Y.S.2d 602 [4th Dept. 2010], lv denied 16 N.Y.3d 798, 919 N.Y.S.2d 515, 944 N.E.2d 1155 [2011] ; see People v. Hawkins , 11 N.Y.3d 484, 494, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ).
We reject defendant's contention that the court erred in denying his request for an impeachment charge and in failing to provide limiting instructions with respect to a purported prior inconsistent statement (cf. CPL 60.35[2] ). In any event, any such errors are harmless (see People v. Lawrence , 141 A.D.3d 1079, 1083, 34 N.Y.S.3d 827 [4th Dept. 2016], lv denied 28 N.Y.3d 1029, 45 N.Y.S.3d 380, 68 N.E.3d 109 [2016] ; People v. Jefferies , 110 A.D.3d 646, 646–647, 974 N.Y.S.2d 63 [1st Dept. 2013], lv denied 23 N.Y.3d 1063, 994 N.Y.S.2d 322, 18 N.E.3d 1143 [2014] ; cf. People v. Montgomery , 22 A.D.3d 960, 962–963, 803 N.Y.S.2d 228 [3d Dept. 2005] ; see generally People v. Crimmins , 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ). We reject defendant's further contention that the sentence is unduly harsh and severe.
We have examined defendant's contentions in his pro se supplemental brief and conclude that none warrants reversal or modification of the judgment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.