| People v Wilcher |
| 2018 NY Slip Op 00956 [158 AD3d 1267] |
| February 9, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Marquis T.Wilcher, Appellant. |
Bridget L. Field, Rochester, for defendant-appellant.
Marquis T. Wilcher, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), renderedMarch 12, 2012. The judgment convicted defendant, upon a nonjury verdict, of criminal sale of acontrolled substance in the first degree and criminal possession of a controlled substance in thethird degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a nonjury verdict,of criminal sale of a controlled substance in the first degree (Penal Law § 220.43[1]) and two counts of criminal possession of a controlled substance in the third degree(§ 220.16 [1], [12]). Defendant failed to preserve for our review the contention inhis main brief that the evidence is legally insufficient to support the conviction because thetestimony of the confidential informant was incredible as a matter of law (see People v Gaston, 100 AD3d1463, 1464 [4th Dept 2012]; see also People v Gray, 86 NY2d 10, 19 [1995]) and, inany event, that contention lacks merit. The confidential informant's testimony "was not incredibleas a matter of law inasmuch as it was not impossible of belief, i.e., it was not manifestly untrue,physically impossible, contrary to experience, or self-contradictory" (People v Harris, 56 AD3d 1267,1268 [4th Dept 2008], lv denied 11 NY3d 925 [2009]). The confidential informant'sextensive criminal history and receipt of favorable treatment in exchange for his testimony do notrender his testimony incredible as a matter of law (see People v Hodge, 147 AD3d 1502, 1503 [4th Dept 2017], lvdenied 29 NY3d 1032 [2017]; People v Carr, 99 AD3d 1173, 1174 [4th Dept 2012], lvdenied 20 NY3d 1010 [2013]). Those facts were placed before the court, and we see no basisto disturb its credibility determination (see Carr, 99 AD3d at 1174). Furthermore,viewing the evidence in the light most favorable to the People (see People v Contes, 60NY2d 620, 621 [1983]), we conclude that the evidence is legally sufficient to support theconviction with respect to each count (see People v Bleakley, 69 NY2d 490, 495 [1987];People v Bausano, 122 AD3d1341, 1342 [4th Dept 2014], lv denied 25 NY3d 1069 [2015]; People vNicholson, 238 AD2d 924, 924 [4th Dept 1997], lv denied 90 NY2d 908 [1997]).Additionally, viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's contention in his main brief that the verdict is againstthe weight of the evidence (see Bleakley, 69 NY2d at 495).
We reject defendant's further contention in his main and pro se supplemental briefs that hewas denied effective assistance of counsel. We conclude that defendant has not sustained hisburden of establishing "that his attorney 'failed to provide meaningful representation' thatcompromised his 'right to a fair trial' " (People v Pavone, 26 NY3d 629, 647 [2015]). Viewing theevidence, the law, and the circumstances of this case, in totality and as of the time of therepresentation (see People v Baldi, 54 NY2d 137, 147 [1981]), we conclude thatdefendant received meaningful representation (see generally People v Wragg, 26 NY3d 403, 409 [2015]). To theextent that defendant raises in his main and pro se supplemental briefs contentions regardingalleged instances of ineffective assistance of counsel that are based upon matters outside therecord on appeal, those contentions must be raised by way of a motion pursuant to CPL 440.10(see People v Streeter, 118 AD3d1287, 1289 [4th Dept 2014], lv denied 23 NY3d 1068 [2014], deniedreconsideration 24 NY3d 1047 [2014]).
Contrary to defendant's further contention, the sentence is not unduly harsh or severe.Finally, we have considered the remaining contentions raised by defendant in his pro sesupplemental brief and conclude that none warrants modification or reversal of the judgment.Present—Whalen, P.J., Peradotto, Lindley, NeMoyer and Troutman, JJ.