| People v Banks |
| 2010 NY Slip Op 05085 [74 AD3d 1783] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RodneyBanks, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered May19, 2009. 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 theseventh degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed and thematter is remitted to Niagara County Court for proceedings pursuant to CPL 460.50 (5).
Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminalpossession of a controlled substance in the third degree (Penal Law § 220.16 [1]) andcriminal possession of a controlled substance in the seventh degree (§ 220.03), defendantcontends that County Court erred in submitting its charge in writing to the jury during itsdeliberations. We conclude that defendant waived that contention inasmuch as the court did soonly after obtaining his consent (seegenerally People v Pollard, 70 AD3d 1403 [2010]; People v Backus, 67 AD3d 1428 [2009], lv denied 13NY3d 936 [2010]). Defendant failed to preserve for our review his further contentions that thecourt erred in submitting the charge in writing absent a request by the jury (see CPL470.05 [2]), and that his right of confrontation was violated by the admission in evidence of anout-of-court statement (see People vVaughan, 48 AD3d 1069 [2008], lv denied 10 NY3d 845 [2008], certdenied 555 US —, 129 S Ct 252 [2008]). We decline to exercise our power to reviewthose contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). Even assuming, arguendo, that defendant preserved for our review his contention that thecourt erred in responding to a note from the jury during its deliberations, we conclude that thecourt's response addressed the jury's inquiry and was a proper statement of the law (see People v Osborne, 63 AD3d1707, 1708 [2009], lv denied 13 NY3d 748 [2009]). Defendant also failed topreserve for our review his challenge to the legal sufficiency of the evidence (see People vHines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]), and in any eventthat challenge is without merit (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Viewing the evidence in light of the elements of the crimes 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). Finally, we reject the contention of defendantthat he was denied effective assistance of counsel (see generally [*2]People v Baldi, 54 NY2d 137, 147 [1981]).Present—Scudder, P.J., Peradotto, Lindley, Green and Gorski, JJ.