Opinion
1257 KA 13–00723
11-16-2018
The PEOPLE of the State of New York, Respondent, v. Curtis WILLIAMS, Defendant–Appellant. (Appeal No. 1.)
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT–APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT–APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon a jury verdict, of criminal sale of a controlled substance in the fifth degree ( Penal Law § 220.31 ). In appeal No. 2, defendant appeals from a judgment revoking the sentence of probation previously imposed upon his conviction of rape in the third degree (§ 130.25 [2] ) and imposing a sentence of incarceration upon defendant's admission that he violated the terms and conditions of his probation. We affirm in both appeals.
In appeal No. 1, defendant contends that the evidence is legally insufficient to support the conviction because the People failed to submit sufficient evidence of a transfer of a controlled substance between defendant and the buyer. We reject that contention (see generally People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Defendant's further contention that the evidence is legally insufficient to establish that he had the necessary means to complete the drug sale is unpreserved for our review because he did not raise that contention until his CPL 330.30 motion (see People v. Simmons, 111 A.D.3d 975, 977, 974 N.Y.S.2d 185 [3d Dept. 2013], lv. denied 22 N.Y.3d 1203, 986 N.Y.S.2d 423, 9 N.E.3d 918 [2014] ; see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; People v. Mills, 28 A.D.3d 1156, 1157, 813 N.Y.S.2d 592 [4th Dept. 2006], lv denied 7 N.Y.3d 903, 826 N.Y.S.2d 612, 860 N.E.2d 74 [2006] ), 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] ). Viewing the evidence in light of the elements of the crime as charged to the jury (see Danielson, 9 N.Y.3d at 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 [1987] ).
We note that the certificate of conviction in appeal No. 1 incorrectly reflects that defendant was acquitted of promoting prison contraband in the first degree ( Penal Law § 205.25 [1 ] ), and it must therefore be amended to reflect that a mistrial without prejudice was granted on that count (see People v. Gause, 46 A.D.3d 1332, 1333, 848 N.Y.S.2d 495 [4th Dept. 2007], lv dismissed 10 N.Y.3d 811, 857 N.Y.S.2d 44, 886 N.E.2d 809 [2008] ).
In appeal No. 2, defendant correctly concedes that he failed to preserve for our review his challenge to the voluntariness of his admission to the violation of probation because he "did not move on that ground either to withdraw his admission ... or to vacate the judgment revoking his sentence of probation" ( People v. Spangenberg, 118 A.D.3d 1444, 1444, 987 N.Y.S.2d 782 [4th Dept. 2014], lv denied 24 N.Y.3d 965, 996 N.Y.S.2d 224, 20 N.E.3d 1004 [2014] ; see People v. Carncross, 48 A.D.3d 1187, 1187, 852 N.Y.S.2d 506 [4th Dept. 2008], lv dismissed 10 N.Y.3d 932, 862 N.Y.S.2d 339, 892 N.E.2d 405 [2008], lv denied 11 N.Y.3d 830, 868 N.Y.S.2d 605, 897 N.E.2d 1089 [2008] ). Moreover, the narrow exception to the preservation rule does not apply because defendant did not say anything during the admission colloquy that "cast[ ] significant doubt upon [his] guilt or otherwise call[ed] into question the voluntariness of the [admission]" ( People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see People v. Carlisle, 120 A.D.3d 1607, 1608, 992 N.Y.S.2d 828 [4th Dept. 2014], lv. denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014] ).