| People v Recore |
| 2008 NY Slip Op 08929 [56 AD3d 1233] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v StevenRecore, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered March28, 2005. The judgment convicted defendant, upon a jury verdict, of criminal possession of acontrolled substance in the third degree and criminal possession of a controlled substance in thefourth 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, ofcriminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1])and criminal possession of a controlled substance in the fourth degree (§ 220.09 [1]).Contrary to defendant's contention, the conviction is supported by legally sufficient evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The evidence at trialestablishes that, following his flight from the police, the police found defendant alone and hidingbehind bushes, and they observed him making a throwing motion with his fists. Seconds later,the police found only a bag of narcotics that was warm and moist in the location where anyobject thrown by defendant would have landed. Viewing the evidence in the light most favorableto the prosecution, as we must (see People v Contes, 60 NY2d 620, 621 [1983]), weconclude that it is legally sufficient to establish defendant's possession of the drugs inasmuch asdefendant "exercise[d] dominion or control" over them (Penal Law § 10.00 [8]; seePeople v Robinson, 26 AD3d 202 [2006], lv denied 7 NY3d 762 [2006]). Defendantfailed to preserve for our review his contention that County Court erred in failing to issue acircumstantial evidence charge (see CPL 470.05 [2]) and we decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Defendant also failed to preserve for our review his contention that the courterred in admitting certain expert testimony in evidence (see People v Huebert, 30 AD3d1018 [2006], lv denied 7 NY3d 813 [2006]). In any event, that contention lacks merit."[T]he court properly admitted [the] expert testimony to establish whether certain items were'inconsistent with personal use and consistent with drug dealing' " (People v Gary, 19AD3d 1118, 1120 [2005], lv denied 5 NY3d 828 [2005]), and that testimony did notimpermissibly address the ultimate issue before the jury (see People v Brown, 52 AD3d1175, 1177 [2008]). Defendant also failed to preserve for our review his contention that the courtshould have issued a limiting instruction with respect to the expert testimony concerning thecommon practices of drug users and drug dealers (see CPL 470.05 [2]). We conclude inany event that, even if defendant had preserved that contention for our review, [*2]reversal would not be required inasmuch as the court's charge withrespect to the testimony of expert witnesses was sufficient to inform the jury that it was free toreject such testimony (see People v McNair, 26 AD3d 245 [2006], lv denied 6NY3d 896 [2006]). Contrary to the remaining contention of defendant, the record establishes thathe received meaningful representation (see generally People v Baldi, 54 NY2d 137, 147[1981]). Present—Centra, J.P., Fahey, Peradotto, Green and Gorski, JJ.