| People v Russaw |
| 2014 NY Slip Op 01055 [114 AD3d 1261] |
| February 14, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Cheyenne J. Russaw, Jr., Appellant. |
—[*1] Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), renderedOctober 17, 2011. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a controlled substance in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal possession of a controlled substance in the fourth degree (Penal Law§ 220.09 [1]). Defendant failed to preserve for our review his contention thatCounty Court committed several errors in allowing the jurors to take notes and ininstructing the jurors with respect to note-taking, and we decline to exercise our power toreview that contention as a matter of discretion in the interest of justice (see People v Green, 35 AD3d1197, 1198 [2006], lv denied 8 NY3d 922 [2007]; People vValiente, 309 AD2d 562, 562 [2003], lv denied 1 NY3d 602 [2004]).Contrary to defendant's further contention, the evidence is legally sufficient to establishthat he constructively possessed the controlled substance. "Where . . . thereis no evidence that defendant actually possessed the controlled substance, the Peoplemust establish that defendant exercised dominion or control over the property by asufficient level of control over the area in which the contraband [was] found or over theperson from whom the contraband [was] seized" (People v Pichardo, 34 AD3d 1223, 1224 [2006], lvdenied 8 NY3d 926 [2007] [internal quotation marks omitted]; see People vManini, 79 NY2d 561, 573 [1992]; see also Penal Law § 10.00 [8]).Here, we conclude that the evidence, viewed in the light most favorable to the People(see People v Hines, 97 NY2d 56, 62 [2001], rearg denied 97 NY2d 678[2001]; People v Williams, 84 NY2d 925, 926 [1994]), is legally sufficient toestablish that defendant constructively possessed the controlled substance (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Also contrary todefendant's contention, viewing the evidence in light of the elements of the crime ascharged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), the verdict is not against the weight ofthe evidence (see generally Bleakley, 69 NY2d at 495).
We reject defendant's further contentions that he was denied effective assistance ofcounsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]), and that thesentence is unduly harsh and severe. Finally, we have reviewed defendant's remainingcontention and conclude that it does not require reversal or modification of the judgmentof conviction. Present—Scudder, P.J., Fahey, Peradotto, Lindley and Sconiers, JJ.