People v Gordon

2007 NY Slip Op 08585 [45 AD3d 1357]

November 9, 2007

Appellate Division, Fourth Department

As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent, v CarltonGordon, Appellant.

—[*1]Edward J. Nowak, Public Defender, Rochester (William Clauss of counsel), fordefendant-appellant.

Carlton Gordon, defendant-appellant pro se.

Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.

Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.),rendered June 30, 2004. The judgment convicted defendant, upon a jury verdict, of criminal saleof marihuana in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal sale of marihuana in the first degree (Penal Law § 221.55). Contrary todefendant's contention, the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]; People v Martinez, 37 AD3d 1099, 1100 [2007], lv denied8 NY3d 947 [2007]; People vRobinson, 5 AD3d 1077 [2004], lv denied 2 NY3d 805 [2004]). Defendantfailed to preserve for our review his contention that he was penalized for exercising his right to atrial (see People v Hurley, 75 NY2d 887 [1990]; People v Irrizarry, 37 AD3d 1082 [2007], lv denied 8NY3d 946 [2007]) and, in any event, that contention lacks merit (see Irrizarry, 37 AD3dat 1083; People v Smith, 21 AD3d1277, 1278 [2005], lv denied 7 NY3d 763 [2006]). The sentence is not unduly harshor severe. Defendant failed to preserve for our review his contention in his pro se supplementalbrief that Supreme Court erred in admitting an audiotape in evidence (see People v Furlong, 4 AD3d839, 840 [2004], lv denied 2 NY3d 739 [2004]; People v Janes, 261 AD2d890 [1999], lv denied 93 NY2d 1020 [1999]), and we decline to exercise our power toreview that contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]). We have reviewed the remaining contentions of defendant in his pro se supplementalbrief and conclude that they are lacking in merit. Present—Gorski, J.P., Smith, Centra,Lunn and Peradotto, JJ.