| People v Jones |
| 2012 NY Slip Op 01006 [92 AD3d 1218] |
| February 10, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Shariff Jones,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Sarah M. Kelly and James P. Maxwell ofcounsel), for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered February 29, 2008. The judgment convicted defendant, upon a jury verdict, of criminalsale of a controlled substance in the third degree and criminal possession of a controlledsubstance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of criminalsale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and criminalpossession of a controlled substance in the third degree (§ 220.16 [1]), defendant contendsthat the evidence is not legally sufficient to support the conviction. Defendant failed to move fora trial order of dismissal on the ground that the evidence concerning his mental culpability andintent was legally insufficient, and thus he failed to preserve that part of his contention for ourreview (see People v Hawkins, 11NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]). Although defendantpreserved for our review his contention concerning the issue of identity, we conclude that theevidence with respect thereto, viewed in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), is legally sufficient to support the conviction (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]).
To the extent that defendant contends that hearsay was improperly admitted in evidence attrial and that such hearsay bolstered the People's case, that contention is not preserved for ourreview with respect to the testimony of the two police detectives who were not undercover (see People v Thomas, 85 AD3d1572, 1573 [2011]; People vVelsor, 73 AD3d 819 [2010], lv denied 15 NY3d 810 [2010]). We decline toexercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Although defendant preserved for our review his contentionthat the testimony of one of the undercover detectives constituted hearsay, Supreme Court did notabuse its discretion in determining that the testimony in question was not offered for its truth, andwe will not disturb that determination (see generally People v Carroll, 95 NY2d 375, 385[2000]). Defendant did not preserve for our review his contention that the testimony of thatundercover detective constituted improper bolstering (see Thomas, 85 AD3d at 1573).[*2]Defendant also failed to preserve for our review hiscontention that he was denied his right of confrontation (see People v Kello, 96 NY2d740, 743-744 [2001]), as well as his contention that the court erred in permitting the prosecutorto make improper statements during summation (see People v Kithcart, 85 AD3d 1558, 1559-1560 [2011], lvdenied 17 NY3d 818 [2011]). We decline to exercise our power to review those contentionsas a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Finally, 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 reject defendant's further contention that the verdict is against theweight of the evidence (see generally Bleakley, 69 NY2d at 495). Present—Centra,J.P., Fahey, Peradotto, Carni and Martoche, JJ.