Opinion
464 KA 13-00523
05-01-2015
The PEOPLE of the State of New York, Respondent, v. James O. RICHARDSON, Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him upon a jury verdict of two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and one count each of criminal sale of a controlled substance in the third degree (§ 220.39[1] ), criminal nuisance in the first degree (§ 240.46) and criminal possession of a controlled substance in the fifth degree (§ 220.06[5] ). Defendant failed to preserve for our review his contention that County Court did not make an adequate finding of necessity for the use of a stun belt to restrain him during the trial (see People v. Schrock, 108 A.D.3d 1221, 1225–1226, 969 N.Y.S.2d 668, lv. denied 22 N.Y.3d 998, 981 N.Y.S.2d 4, 3 N.E.3d 1172, reconsideration denied 23 N.Y.3d 1025, 992 N.Y.S.2d 807, 16 N.E.3d 1287 ; see also People v. Cooke, 24 N.Y.3d 1196, 1197, 3 N.Y.S.3d 755, 27 N.E.3d 469 ). 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 contention, the evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), is legally sufficient to support his conviction of criminal nuisance in the first degree.
Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence supporting his conviction of the remaining counts of the indictment, “inasmuch as his motion for a trial order of dismissal was not specifically directed at the same alleged shortcoming in the evidence raised on appeal” with respect to those counts (People v. Brown, 96 A.D.3d 1561, 1562, 946 N.Y.S.2d 761, lv. denied 19 N.Y.3d 1024, 953 N.Y.S.2d 557, 978 N.E.2d 109 [internal quotation marks omitted] ). 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 conclude that the verdict is not 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 ).
Defendant failed to preserve for our review his contentions that he was denied a fair trial by prosecutorial misconduct (see CPL 470.05[2] ; People v. James, 114 A.D.3d 1202, 1206–1207, 980 N.Y.S.2d 645, lv. denied 22 N.Y.3d 1199, 986 N.Y.S.2d 420, 9 N.E.3d 915 ), that the court erred in ordering him to pay restitution (see People v. Lewis, 89 A.D.3d 1485, 1486, 932 N.Y.S.2d 663 ), and that, in determining the sentence of incarceration, the court penalized him for exercising his right to a jury trial (see People v. Stubinger, 87 A.D.3d 1316, 1317, 929 N.Y.S.2d 813, lv. denied 18 N.Y.3d 862, 938 N.Y.S.2d 869, 962 N.E.2d 294 ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Finally, the sentences imposed on the conviction of criminal nuisance in the first degree and criminal possession of a controlled substance in the fifth degree are not unduly harsh or severe. In light of defendant's resentencing on the conviction of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree, we do not consider his challenge to the severity of the original sentences imposed on those counts, and we dismiss the appeal from the judgment to that extent (see People v. Snagg, 35 A.D.3d 1287, 1289, 825 N.Y.S.2d 874, lv. denied 8 N.Y.3d 950, 836 N.Y.S.2d 560, 868 N.E.2d 243 ; People v. Haywood, 203 A.D.2d 966, 966, 612 N.Y.S.2d 1016, lv. denied 83 N.Y.2d 967, 616 N.Y.S.2d 20, 639 N.E.2d 760 ).
It is hereby ORDERED that said appeal from the judgment insofar as it imposed sentence on the conviction of criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the third degree is unanimously dismissed and the judgment is affirmed.