| People v Dowdell |
| 2011 NY Slip Op 07996 [89 AD3d 1430] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kareem Dowdell,Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Hannah Stith Long of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered July 25,2007. The judgment convicted defendant, upon a jury verdict, of conspiracy in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, ofconspiracy in the second degree (Penal Law § 105.15). Defendant contends that the convictionis not supported by legally sufficient evidence inasmuch as the evidence merely established that hepurchased cocaine and the coconspirator's testimony was not sufficiently corroborated. That contentionis not preserved for our review because defendant did not move for a trial order of dismissal on thosegrounds (see People v Carncross, 14NY3d 319, 324-325 [2010]; People v Gray, 86 NY2d 10, 19 [1995]). Defendant'scontention also was not preserved for our review by his pretrial motion to dismiss the indictment on theground that the evidence presented to the grand jury was legally insufficient to establish a conspiracy(see generally People v Napolitano, 282 AD2d 49, 52 [2001], lv denied 96 NY2d866 [2001]), nor was it preserved for our review by his post-trial pro se motion to set aside the verdict(see generally People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678[2001]).
In any event, we conclude that the conviction is supported by legally sufficient evidence. Althoughwe agree with defendant that the crime of conspiracy requires an agreement to commit "some other[ ]substantive crime" (People v Schwimmer, 66 AD2d 91, 94 [1978], affd 47 NY2d1004 [1979]), the jury may find him guilty of conspiracy based on an agreement to purchase or possessillegal drugs (see People v Moses, 291 AD2d 814 [2002]; People v Gray [appeal No.2], 284 AD2d 1012 [2001], lv denied 97 NY2d 682 [2001]). Viewing the evidence in thelight most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), weconclude that there is a valid line of reasoning and permissible inferences that could lead a rationalperson to the conclusion that defendant conspired with one or more people to possess four ounces ormore of cocaine and that the co-conspirator's testimony was sufficiently corroborated (see generally People v Reome, 15 NY3d188, 191-192 [2010]; People v Bleakley, 69 NY2d 490, 495 [1987]).[*2]
Defendant's contention that he was unduly prejudiced by thetheory of the prosecution is not preserved for our review (see generally People v Iannone, 45NY2d 589, 600-601 [1978]), and we decline to exercise our power to review it as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). We have reviewed defendant'sremaining contentions and conclude that they are without merit. Present—Fahey, J.P., Sconiers,Gorski and Martoche, JJ.