| People v Gordon |
| 2015 NY Slip Op 07680 [132 AD3d 904] |
| October 21, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Maurice Gordon, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Patricia Pazner of counsel), for appellant, andappellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Seth M.Lieberman, and Gabrielle Lane of counsel; Craig Marinaro on the brief), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Ingram, J.), rendered April 23, 2012, convicting him of criminal sale of a controlledsubstance in the third degree (three counts) and criminal possession of a controlledsubstance in the third degree, upon a jury verdict, and sentencing him to consecutivedeterminate terms of imprisonment of eight years on each of the convictions of criminalsale of a controlled substance in the third degree, to run concurrently with a determinateterm of imprisonment of eight years on the conviction of criminal possession of acontrolled substance in the third degree, followed by periods of postreleasesupervision.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the determinate terms of imprisonment imposed on each of theconvictions from eight years to four years; as so modified, the judgment is affirmed.
The defendant failed to preserve for appellate review his challenge to the legalsufficiency of the evidence, as defense counsel did not base his motion to dismiss on anyspecific argument currently raised on appeal (see CPL 470.05 [2]; People vGray, 86 NY2d 10, 19 [1995]). In any event, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), wefind that it was legally sufficient to establish the defendant's guilt beyond a reasonabledoubt. Moreover, upon our independent review pursuant to CPL 470.15 (5), we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633, 644-645 [2006]). The trial evidence persuasively established that the defendantsold plastic bags containing cocaine to three separate apprehended buyers, and possessedadditional plastic bags containing cocaine with the intent to sell them (see People v Gillyard, 70AD3d 854, 854-855 [2010]; People v Morales, 309 AD2d 621, 621 [2003];People v Rivera-Lugo, 202 AD2d 333, 333 [1994]).
The defendant's further contention, raised in his pro se supplemental brief, that hewas deprived of his right to testify before a grand jury, has been waived, as he failed tomove to dismiss the indictment within five days of his arraignment (see CPL190.50 [5] [c]; People v Schultz, [*2]128 AD3d989, 990 [2015]; People vZeigler, 128 AD3d 737, 738 [2015]; People v Simon, 101 AD3d 908, 909 [2012]; People v Venable, 7 AD3d647, 648 [2004]). Additionally, he has not established that his attorney's failure toeffectuate his appearance before the grand jury constituted ineffective assistance ofcounsel under the circumstances of this case (see generally People v Simmons, 10 NY3d 946, 949[2008]; People v Wiggins, 89 NY2d 872, 873 [1996]; People v Zeigler,128 AD3d at 738; People vSain, 111 AD3d 964, 965 [2013]; People v Nobles, 29 AD3d 429, 430 [2006]).
Likewise, the defendant failed to demonstrate that he was deprived of the effectiveassistance of trial counsel based on allegations that the attorneys who represented himdid not adequately advise him regarding the prosecution's plea offers. That contention isrefuted by the record of the pretrial proceedings in this case, which establishes that hereceived meaningful representation (see generally People v Caban, 4 AD3d 274 [2004], lv granted 2 NY3d 810 [2004], affd 5 NY3d143 [2005]; People v Baldi, 54 NY2d 137, 147 [1981]).
The defendant's contention that he was penalized at sentencing for exercising hisright to a jury trial is unpreserved for appellate review (see People v Hurley, 75NY2d 887, 888 [1990]; Peoplev Ested, 129 AD3d 858 [2015]; People v Williams, 127 AD3d 1114, 1118 [2015]). In anyevent, the record reveals no evidence of retaliation or vindictiveness on the part of thesentencing court against the defendant for electing to proceed to trial (see People v Prince, 128 AD3d987, 988 [2015]; People vSeymore, 106 AD3d 1033, 1034 [2013]; People v Garcia, 46 AD3d 573, 573-574 [2007]). However,the sentences imposed were excessive to the extent indicated herein (see generally People v Rivera,130 AD3d 655 [2015]; People v Boone, 129 AD3d 1099 [2015]; People vSuitte, 90 AD2d 80 [1982]). Mastro, J.P., Balkin, Sgroi and Maltese, JJ.,concur.