| People v Jackson |
| 2013 NY Slip Op 00851 [103 AD3d 1245] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vGregory T. Jackson, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua, for respondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.),rendered April 20, 2011. The judgment convicted defendant, upon a jury verdict, ofcriminal sale of a controlled substance 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 upon a jury verdict ofcriminal sale of a controlled substance in the third degree (Penal Law § 220.39[1]), defendant contends that he was denied effective assistance of counsel. We rejectthat contention. Defendant has failed to demonstrate "the absence of strategic or otherlegitimate explanations" for the various allegations of ineffectiveness (People vRivera, 71 NY2d 705, 709 [1988]). Further, viewing the evidence, the law and thecircumstances of this case, in totality and as of the time of the representation, weconclude that defendant received meaningful representation (see generally People vBaldi, 54 NY2d 137, 147 [1981]).
Defendant failed to preserve for our review his further contention that County Courtviolated CPL 310.10 by questioning individual jurors concerning their contact withdefendant without explicitly instructing the remaining jurors not to deliberate until all 12jurors were present (see Peoplev Kelly, 16 NY3d 803, 804 [2011]), and we decline to exercise our power toreview that contention as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). Contrary to defendant's contention, "there was no mode of proceedingserror dispensing with the preservation requirement because the brief, momentaryseparation of the juror[s] from deliberations was not the type of violation contemplatedby the 'continuously kept together' language of CPL 310.10" (Kelly, 16 NY3d at804). Present—Smith, J.P., Peradotto, Lindley, Whalen and Martoche, JJ.