| People v Easley |
| 2015 NY Slip Op 00047 [124 AD3d 1284] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vGrant A. Easley, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia,A.J.), rendered January 2, 2013. The judgment convicted defendant, upon a nonjuryverdict, of criminal possession of a controlled substance in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a nonjury verdict ofcriminal possession of a controlled substance in the fourth degree (Penal Law§ 220.09 [1]), defendant contends that there was no probable cause tocompel his pre-indictment DNA buccal swab (see generally Matter of Abe A., 56NY2d 288, 291 [1982]; Peoplev Smith, 95 AD3d 21, 24 [2012]). Defendant failed to preserve his contentionfor our review inasmuch as he did not move to suppress the DNA evidence obtainedfrom the buccal swab (seePeople v Brown, 92 AD3d 1216, 1216 [2012], lv denied 18 NY3d 992[2012]; People v Clark, 15AD3d 864, 865 [2005], lv denied 4 NY3d 885 [2005]), and we decline toexercise our power to review defendant's contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]).
We reject defendant's further contention that he did not have actual or constructivepossession of the drugs and thus that the evidence is legally insufficient to support theconviction. Viewing the evidence in the light most favorable to the People (seegenerally People v Contes, 60 NY2d 620, 621 [1983]), we conclude that there is avalid line of reasoning and permissible inferences that could lead the trier of fact toconclude that defendant constructively possessed the subject drugs (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Furthermore, viewing the evidence inlight of the elements of the crime in this nonjury trial (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is againstthe weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant failed to preserve for our review his further contention that he wasdeprived of a fair trial by prosecutorial misconduct on summation (see CPL470.05 [2]) and, in any event, that contention is without merit. The allegedly impropercomments were "either a fair response to defense counsel's summation or fair commenton the evidence" (People vSantiago, 101 AD3d 1715, 1716 [2012], lv denied 21 NY3d 946 [2013][internal quotation marks omitted]; see generally People v Halm, 81 NY2d 819,821 [1993]).
Finally, defendant's sentence is not unduly harsh or severe. We note, however, thatthe certificate of conviction incorrectly reflects that defendant was sentenced as a secondfelony offender, and it therefore must be amended to reflect that he was sentenced as asecond felony drug offender (see People v Vasavada, 93 AD3d 893, 894 [2012], lvdenied 19 NY3d 978 [2012]; see also People v Afrika, 79 AD3d 1678, 1680 [2010],lv denied 17 NY3d 791 [2011]). Present—Smith, J.P., Centra, Fahey,Lindley and Whalen, JJ.