| People v McDuffie |
| 2010 NY Slip Op 06910 [77 AD3d 1360] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JamarMcDuffie, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered January 20,2009. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlledsubstance in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminalpossession of a controlled substance in the fourth degree (Penal Law § 220.09 [1]), defendantcontends that he was denied his right to a fair trial based on the prosecutor's failure to correct thetestimony of a police officer. "[A] prosecutor has a duty to correct trial testimony if he or she knowsthat it is false" (People v Williams, 61AD3d 1383 [2009], lv denied 13 NY3d 751 [2009]; see People v Savvides, 1NY2d 554, 556-557 [1956]). Here, the prosecutor sought to recall the officer to correct his testimony,but defendant objected and sought to resolve the issue by way of stipulation. County Court gavedefendant the option of recalling the officer for the purpose of clarification or arguing on summation thatthe officer was mistaken, and defendant ultimately used the testimony on summation in an attempt toundermine the People's case. Consequently, we conclude that any error in failing to correct thetestimony of that officer is harmless (seePeople v Hendricks, 2 AD3d 1450 [2003], lv denied 2 NY3d 762 [2004]; seegenerally People v Steadman, 82 NY2d 1, 8-9 [1993]; People v Crimmins, 36 NY2d230, 241-242 [1975]).
By failing to renew his motion for a trial order of dismissal after presenting evidence, defendantfailed to preserve for our review his further contention that the conviction is not supported by legallysufficient evidence (see People v Lane, 7NY3d 888, 889 [2006]; People v Hines, 97 NY2d 56, 61 [2001], rearg denied97 NY2d 678 [2001]). Viewing the evidence in light of the elements of the crimes as charged to thejury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Finally, defendant contendsthat the court erred in charging the jury on the theory of constructive possession. We reject thatcontention inasmuch as the court properly charged the jury with the definition of "possess" set forth inPenal Law § 10.00 (8). Present—Scudder, P.J., Martoche, Smith, Fahey and Green, JJ.