| People v Goodrum |
| 2010 NY Slip Op 03706 [72 AD3d 1639] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BruceGoodrum, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered February17, 2009. The judgment convicted defendant, upon a jury verdict, of criminal possession of acontrolled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, after a jury trial, ofcriminal possession of a controlled substance in the third degree (Penal Law § 220.16[12]). Defendant failed to preserve for our review his contention that the conviction is notsupported by legally sufficient evidence establishing that he acted as an accomplice because hismotions for trial orders of dismissal were not specifically directed at that alleged insufficiency(see People v Hawkins, 11 NY3d484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]). In any event, we rejectthat contention (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Furthermore, viewing the evidence in light of the elements of the crime as charged to the jury(see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495).
We reject defendant's further contention that County Court erred in refusing to give a propercircumstantial evidence charge. Indeed, inasmuch as there was both direct and circumstantialevidence of defendant's guilt with regard to defendant's constructive possession of the controlledsubstance (see People v Wilson, 284 AD2d 958 [2001], lv denied 96 NY2d 943[2001]), no circumstantial evidence charge was warranted (see People v Daddona, 81NY2d 990, 992 [1993]; People v Perez, 259 AD2d 274 [1999], lv denied 93NY2d 976 [1999]; cf. People v David, 234 AD2d 787 [1996], lv denied 89 NY2d1034 [1997]). By failing to object to the court's ultimate Sandoval ruling, defendantfailed to preserve for our review his contention that the ruling constitutes an abuse of discretion(see People v Brown, 39 AD3d1207 [2007], lv denied 9 NY3d 921 [2007]; People v Alston, 27 AD3d 1141, 1141-1142 [2006], lv denied6 NY3d 892 [2006]). We decline to exercise our power to review that contention as a matterof discretion in the interest of justice (see CPL 470.15 [6] [a]). Finally, the sentence isnot unduly harsh or severe. Present—Smith, J.P., Carni, Lindley, Sconiers and Pine, JJ.