| People v Fairley |
| 2009 NY Slip Op 04767 [63 AD3d 1288] |
| June 11, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Anthony L.Fairley, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Amanda M. Chafee of counsel), forrespondent.
Peters, J.P. Appeal from a judgment of the County Court of Chemung County (Buckley, J.),rendered February 4, 2008, upon a verdict convicting defendant of the crimes of criminalpossession of a weapon in the third degree, criminal possession of a weapon in the fourth degree,criminal possession of a controlled substance in the third degree and criminal possession of acontrolled substance in the fourth degree.
In June 2007, the victim went to defendant's apartment to purchase drugs. An altercationensued, during which defendant shot and killed the victim. Defendant was thereafter chargedwith murder in the second degree, criminal possession of a weapon in the second degree,criminal possession of a weapon in the third degree, criminal possession of a controlledsubstance in the third degree and criminal possession of a controlled substance in the fourthdegree. Following a jury trial, at which he testified that he had acted in self-defense, defendantwas acquitted of murder in the second degree and criminal possession of a weapon in the seconddegree, but convicted of criminal possession of a weapon in the fourth degree, as a lesserincluded offense of the criminal possession of a weapon in the second degree count, as well asthe remaining counts of the indictment. He was thereafter sentenced as a second felony offenderto an aggregate prison term of 12 years, to be followed by three years of postrelease supervision.Defendant now appeals.[*2]
We reject defendant's contention that the prosecutormade an improper "safe streets" comment during opening statements which warrants reversal.This isolated remark, when viewed in the context of the prosecutor's entire opening statement,did not exceed the bounds of permissible commentary (see People v Galloway, 54 NY2d396, 399 [1981]; People v Silvestri,34 AD3d 986, 987 [2006]). While defendant now argues that this same comment alsoconstituted an improper expression of the prosecutor's "personal belief or opinion as to the truthor falsity of [the] testimony or evidence" (People v Bailey, 58 NY2d 272, 277 [1983][internal quotation marks and citation omitted]), he did not object on that ground and, thus, theclaim is unpreserved (see CPL 470.05 [2]; People v Grady, 40 AD3d 1368, 1375 [2007], lv denied 9NY3d 923 [2007]).
Nor do we find error in County Court's refusal to charge criminal possession of a controlledsubstance in the seventh degree as a lesser included offense of the criminal possession of acontrolled substance in the third degree count. "A defendant is entitled to a lesser includedoffense charge upon showing, first, that it is impossible to commit the greater crime withoutcommitting the lesser and, second, that a reasonable view of the evidence supports a finding thatdefendant committed the lesser but not the greater offense" (People v Morales, 36 AD3d 957, 958 [2007], lv denied 8NY3d 988 [2007] [citations omitted]; see People v Barringer, 54 AD3d 442, 444 [2008], lvdenied 11 NY3d 830 [2008]). Here, there is no dispute that the first prong of the test wassatisfied (see Penal Law § 220.16 [1]; § 220.03; see also People v Olivera, 45 AD3d154, 156 [2007]). As to the second prong, the only difference between the two crimes is thatcriminal possession of a controlled substance in the third degree requires the additional elementthat the controlled substance be possessed with the intent to sell (see Penal Law §220.16 [1]). Given defendant's explicit testimony that he intended to sell the drugs at issue,County Court properly concluded that there is no reasonable view of the evidence that wouldsupport a finding that defendant possessed them solely for his personal use (see People vBarringer, 54 AD3d at 444; Peoplev Kirton, 36 AD3d 1011, 1014 [2007], lv denied 8 NY3d 947 [2007]).
Defendant's assertion that he was denied the effective assistance of counsel as a result ofcounsel's failure to object to County Court's reasonable doubt instruction is similarly withoutmerit. The charge, which was identical to the reasonable doubt charge contained in the NewYork Criminal Jury Instructions (see CJI2d[NY] Presumption of Innocence, Burden ofProof, Proof Beyond a Reasonable Doubt), properly conveyed that concept to the jury (see People v Wright, 22 AD3d873, 876 [2005], lv denied 6 NY3d 761 [2005]; People v Johnson, 307AD2d 384, 385 [2003], lv denied 1 NY3d 574 [2003]; People v Setless, 289AD2d 708, 709 [2001], lv denied 98 NY2d 640 [2002]). Thus, counsel was notineffective for failing to object (seePeople v Perkins, 27 AD3d 890, 893 [2006], lvs denied 6 NY3d 897 [2006], 7NY3d 761 [2006]; People vFogarty, 12 AD3d 854, 857 [2004], lv denied 4 NY3d 763 [2005]). Viewing thecircumstances of this case in their totality, we conclude that counsel, who secured an acquittal onthe two most serious charges and actively participated in all aspects of the criminal proceeding,rendered meaningful representation (seePeople v Hall, 57 AD3d 1222, 1227 [2008]; People v Lewis, 46 AD3d 943, 947 [2007]; People v Banks, 14 AD3d 726,728 [2005], lv denied 4 NY3d 851 [2005]).
Finally, defendant's sentence was not harsh and excessive. "A sentence which falls withinthe statutory parameters will not be disturbed on appeal absent evidence of a clear abuse ofdiscretion or the existence of extraordinary circumstances" (People v Lanfair, 18 AD3d 1032, 1034 [2005], lv denied 5NY3d 790 [2005] [citations omitted]; see People v Studstill, 27 AD3d 833, 833 [2006], lv denied6 NY3d 898 [2006]). Here, although defendant was given the [*3]maximum sentence upon his conviction of criminal possession of aweapon in the third degree, County Court set forth numerous pertinent factors to support thesentence imposed, including the nature of the offenses committed and defendant's prior criminalhistory, which included a number of drug convictions and a felony assault conviction. As CountyCourt considered appropriate factors and there is no evidence to support defendant's contentionthat he was penalized for exercising his right to trial (see People v Minor, 45 AD3d 885, 886 [2007], lv denied10 NY3d 768 [2008]), we find no basis to disturb the sentence.
Rose, Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.