Opinion
860 KA 19-02346
11-17-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. RYAN J. REEDER, DEFENDANT-APPELLANT.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, OGDEN, GREENWOOD, AND DELCONTE, JJ.
Appeal from a judgment of the Ontario County Court (Brian D. Dennis, J.), rendered June 11, 2019. The judgment convicted defendant, upon a jury verdict, of criminal sale of a controlled substance in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]). We affirm.
Defendant contends that the verdict is contrary to the weight of the evidence in light of his acquittal of the first count of the indictment charging him with another sale of a controlled substance on a different day, and in light of the jury's apparent acceptance of his agency defense with respect to the first count. We reject that contention. 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 [2007]) and according deference to the jury's credibility determinations (see People v Romero, 7 N.Y.3d 633, 644 [2006]), we conclude that the People disproved the agency defense beyond a reasonable doubt with respect to the second count, of which defendant was convicted, and that the verdict is not contrary to the weight of the evidence (see People v Walker, 117 A.D.3d 1441, 1442 [4th Dept 2014], lv denied 23 N.Y.3d 1044 [2014]; see also People v Mineccia, 185 A.D.3d 1407, 1407-1408 [4th Dept 2020]; People v Fisher, 101 A.D.3d 1786, 1787 [4th Dept 2012], lv denied 20 N.Y.3d 1098 [2013]; see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987]).
We also reject defendant's contention that he was denied effective assistance of counsel. It is well settled that the "failure to 'make a motion or argument that has little or no chance of success'" does not amount to ineffective assistance (People v Caban, 5 N.Y.3d 143, 152 [2005]), and defendant otherwise has failed to show the absence of strategic or other legitimate explanations for his attorney's alleged shortcomings (see generally People v Benevento, 91 N.Y.2d 708, 712 [1998]; People v Terborg, 156 A.D.3d 1320, 1322 [4th Dept 2017], lv denied 31 N.Y.3d 1018 [2018]). Defendant's assertion that defense counsel was ineffective in failing to call an unspecified exculpatory witness is based on matters outside the record on appeal and therefore must be raised by way of a motion pursuant to CPL 440.10 (see People v Belton, 199 A.D.3d 1373, 1374-1375 [4th Dept 2021], lv denied 37 N.Y.3d 1159 [2022]; People v Roman, 107 A.D.3d 1441, 1443 [4th Dept 2013], lv denied 21 N.Y.3d 1045 [2013]).
Defendant's contention that he was deprived of a fair trial due to prosecutorial misconduct "is unpreserved for our review inasmuch as defendant did not object to any of the alleged instances of misconduct" (People v Pendergraph, 150 A.D.3d 1703, 1703 [4th Dept 2017], lv denied 29 N.Y.3d 1132 [2017]; see CPL 470.05 [2]), 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]; People v Watts, 218 A.D.3d 1171, 1174 [4th Dept 2023]). Defendant's further contention that the prosecutor engaged in misconduct during the grand jury proceedings is raised for the first time in defendant's reply brief and is thus not properly before us (see People v Ford, 69 N.Y.2d 775, 777 [1987], rearg denied 69 N.Y.2d 985 [1987]; People v James, 162 A.D.3d 1746, 1747 [4th Dept 2018], lv denied 32 N.Y.3d 1112 [2018]).
Finally, contrary to defendant's contention, we conclude that the sentence is not unduly harsh or severe, and we decline defendant's request to exercise our power to reduce the sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]).