Opinion
2013-02-8
The PEOPLE of the State of New York, Respondent, v. Michael WHITE, also Known as Michael Brewer, Defendant–Appellant.
Kathleen P. Reardon, Rochester, for Defendant–Appellant. Michael White, Defendant–Appellant Pro Se.
Kathleen P. Reardon, Rochester, for Defendant–Appellant. Michael White, Defendant–Appellant Pro Se.
R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.
MEMORANDUM:
On appeal 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] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ), defendant contends that the conviction is unsupported by legally sufficient evidence. Viewing the evidence 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), we reject that contention ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Moreover, 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 contention that the verdict is against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Defendant next contends that the court acted vindictively in sentencing him based on his exercise of his right to a jury trial. That contention is unpreserved for our review ( see People v. Motzer, 96 A.D.3d 1635, 1636, 946 N.Y.S.2d 795,lv. denied19 N.Y.3d 1104, 955 N.Y.S.2d 559, 979 N.E.2d 820;People v. Stubinger, 87 A.D.3d 1316, 1317, 929 N.Y.S.2d 813,lv. denied18 N.Y.3d 862, 938 N.Y.S.2d 869, 962 N.E.2d 294). In any event, the record does not support defendant's contention ( see Stubinger, 87 A.D.3d at 1317, 929 N.Y.S.2d 813).
Defendant's challenge in his main and pro se supplemental briefs to the legal sufficiency of the evidence before the grand jury is precluded by his conviction upon legally sufficient trial evidence ( seeCPL 210.30[6]; People v. Smith, 4 N.Y.3d 806, 808, 796 N.Y.S.2d 1, 828 N.E.2d 958). Furthermore, the record does not support defendant's contention that the grand jury was misled regarding a recorded telephone call, and the indictment therefore was not subject to dismissal on that ground ( see People v. Bean, 66 A.D.3d 1386, 1386, 885 N.Y.S.2d 804,lv. denied14 N.Y.3d 769, 898 N.Y.S.2d 101, 925 N.E.2d 106). Defendant's claims of ineffective assistance of counsel in his main and pro se supplemental briefs fail “to demonstrate the absence of strategic or other legitimate explanations” for defense counsel's alleged deficiencies ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;see generally People v. Baldi, 54 N.Y.2d 137, 151, 444 N.Y.S.2d 893, 429 N.E.2d 400), and we thus reject them. Additionally, any isolated errors in defense counsel's representation were not so serious that defendant was thereby deprived of a fair trial ( see People v. Henry, 95 N.Y.2d 563, 565–566, 721 N.Y.S.2d 577, 744 N.E.2d 112).
We have reviewed defendant's remaining contentions in his pro se supplemental brief and conclude that none warrant reversal or modification of the judgment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.