| People v Fineout |
| 2012 NY Slip Op 04887 [96 AD3d 1601] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jeffrey D.Fineout, Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown (Harmony A. Healy of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedFebruary 14, 2011. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a controlled substance in the third degree, criminal possession of marihuana in thesecond degree, criminally using drug paraphernalia in the second degree (two counts) and perjuryin the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, criminal possession of a controlled substance in the third degree (Penal Law §220.16 [1]) and criminal possession of marihuana in the second degree (§ 221.25). At theoutset, we note our concern with defendant's contention that the People withheld disclosure of acooperation agreement of one of their witnesses and subsequently countenanced the perjury ofthat witness with respect to the existence of the cooperation agreement. That contention,however, involves "matters outside the record on appeal and thus may properly be raised by wayof a motion pursuant to CPL article 440" (People v Johnson, 88 AD3d 1293, 1294 [2011]; see People v Ellis, 73 AD3d 1433,1434 [2010], lv denied 15 NY3d 851 [2010]).
Defendant failed to preserve for our review his contention that County Court erred inadmitting certain testimony of several police detectives with respect to their investigation of thiscase. Defendant failed to object to parts of that testimony he now challenges (see CPL470.05 [2]), and otherwise made only a general objection (see People v Mobley, 49 AD3d 1343, 1344 [2008], lvdenied 11 NY3d 791 [2008]) or premised his objection on a theory not advanced on appeal(see generally People v Coapman,90 AD3d 1681, 1683 [2011], lv denied 18 NY3d 956 [2012]; People v Smith, 24 AD3d 1253,1253 [2005], lv denied 6 NY3d 818 [2006]). In any event, that contention lacks meritinasmuch as the admission of the testimony did not violate an exclusionary rule (see People vAlvino, 71 NY2d 233, 241 [1987]).
The further contention of defendant that the court erred in failing to submit to the jury theissue whether a certain witness was an accomplice as a matter of law is not preserved for ourreview (see People v Blume, 92AD3d 1025, 1027 [2012]; People vFreeman, 78 AD3d 1505, 1506 [2010], lv denied 15 NY3d 952 [2010]), and wedecline to exercise our power to address it as a matter of discretion [*2]in the interest of justice (see CPL 470.15 [6] [a]). Finally,we reject the contention of defendant that he was denied a fair trial based on cumulative error and"the inattention of defense counsel to those errors." Viewing the evidence, the law and thecircumstances of this case, in totality and as of the time of the representation, we conclude thatdefense counsel provided meaningful representation (see generally People v Baldi, 54NY2d 137, 147 [1981]). Present—Scudder, P.J., Centra, Fahey, Peradotto and Sconiers, JJ.