| People v Hirsh |
| 2013 NY Slip Op 03583 [106 AD3d 1546] |
| May 17, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vMichael S. Hirsh, Appellant. |
—[*1] Gregory S. Oakes, District Attorney, Oswego (Courtney E. Pettit of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.),rendered November 29, 2011. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of marihuana in the second degree, criminal possession of marihuanain the fourth degree and growing of the plant known as cannabis by unlicensed persons.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice by reducing the sentence of incarcerationimposed for criminal possession of marihuana in the second degree to a determinate termof 1½ years and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal possession of marihuana in the second degree (Penal Law §221.25), criminal possession of marihuana in the fourth degree (§ 221.15) andgrowing of the plant known as cannabis by unlicensed persons (Public Health Law§ 3382). "By failing to move to dismiss the indictment within the five-daystatutory period on the ground that he was denied his right to testify before the grandjury, defendant . . . waived his right to testify before the grand jury and hiscontention that the indictment should have been dismissed based on the denial of hisright to testify before the grand jury lacks merit" (People v Armstrong, 94 AD3d 1552, 1552-1553 [2012],lv denied 19 NY3d 957 [2012]; see generally People v Jordan, 153AD2d 263, 266-267 [1990], lv denied 75 NY2d 967 [1990]). Defendant'scontention that County Court erred in denying his suppression motion without a hearingis also without merit (see Peoplev Carlton, 26 AD3d 738, 738 [2006]; see generally People v Jones, 95NY2d 721, 725 [2001]). We reject defendant's further contention that the court erred inadmitting in evidence the marihuana leaves and stalks contained, respectively, in People'sexhibits No. 3 and No. 4. That evidence was relevant to the charge of growing of theplant known as cannabis by unlicensed persons (Public Health Law § 3382), andits probative value outweighed the potential that it would unfairly prejudice defendant ormislead the jury with respect to the other counts of the indictment (see generallyPeople v Scarola, 71 NY2d 769, 777 [1988]; People v Alvino, 71 NY2d233, 241 [1987]). In any event, in conjunction with the admission of the evidence inquestion, the court instructed the jury that it "had nothing to do" with the counts of theindictment charging defendant with criminal possession of marihuana, and the jury ispresumed to have followed that instruction (see People v Thomas, 96 AD3d 1670, 1672 [2012], lvdenied 19 NY3d [*2]1002 [2012]).
Contrary to defendant's contention, the evidence is legally sufficient to support theconviction of criminal possession of marihuana in the second degree (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Additionally, viewing the evidence inlight of the elements of criminal possession of marihuana in the second degree ascharged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict withrespect to that crime is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495; People v Rumph, 93 AD3d 1346, 1347 [2012], lvdenied 19 NY3d 967 [2012]; People v Witherspoon, 66 AD3d 1456, 1457 [2009], lvdenied 13 NY3d 942 [2010]). Viewing the evidence, the law and the circumstancesof this case, in totality and as of the time of the representation, we further conclude thatdefendant received meaningful representation (see generally People v Benevento,91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant contends that the court erred in considering information with respect tocertain federal charges against him without assuring itself that such information wasaccurate (see People vBaker, 87 AD3d 1313, 1315 [2011], lv denied 18 NY3d 857 [2011]; People v Durand, 63 AD3d1533, 1536 [2009]). Defendant failed to preserve that contention for our review(see Durand, 63 AD3d at 1536), and we decline to exercise our power to reviewthat contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]). We agree with defendant that the sentence of incarceration of a determinate termof 2½ years imposed for the criminal possession of marihuana in the second degreeconviction is unduly harsh and severe. As a matter of discretion and in the interest ofjustice (see CPL 470.15 [6] [b]), we therefore modify the judgment on that basisby reducing the sentence of incarceration imposed for that conviction to a determinateterm of 1½ years. Present—Centra, J.P., Fahey, Carni, Whalen andMartoche, JJ.