| People v McClary |
| 2018 NY Slip Op 04224 [162 AD3d 1582] |
| June 8, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Anthony D. McClary, Appellant. |
Michael G. Cianfarano, Oswego, for defendant-appellant.
Anthony D. McClary, defendant-appellant pro se.
Kristyna S. Mills, District Attorney, Watertown (George R. Shaffer, III, of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedJuly 24, 2015. The judgment convicted defendant, upon a jury verdict, of criminal sale of acontrolled substance in the third degree (four counts), criminal possession of a controlledsubstance in the third degree (five counts), criminally using drug paraphernalia in the seconddegree (three counts) and perjury in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,four counts of criminal sale of a controlled substance in the third degree (Penal Law§ 220.39 [1]) and five counts of criminal possession of a controlled substance in thethird degree (§ 220.16 [1]), defendant contends that the evidence is legallyinsufficient to support the conviction. Defendant failed to preserve his contention for our review,inasmuch as he made only a general motion for a trial order of dismissal with respect to all butone count (see People v Gray, 86 NY2d 10, 19 [1995]) and, with respect to that onecount, he failed to renew his motion after presenting evidence (see People v Hines, 97NY2d 56, 62 [2001], rearg denied 97 NY2d 678 [2001]; People v Huitt, 149 AD3d 1481,1482 [4th Dept 2017], lv denied 30 NY3d 950 [2017]). We note, however, that" 'we necessarily review the evidence adduced as to each of the elements of the crimes inthe context of our review of defendant's challenge regarding the weight of the evidence' "(People v Stepney, 93 AD3d1297, 1298-1299 [4th Dept 2012], lv denied 19 NY3d 968 [2012]). Viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant failed to preserve for our review his contention that County Court improperlypenalized him for exercising his right to a jury trial when it imposed a sentence greater than thatoffered during plea negotiations (seePeople v Jackson, 159 AD3d 1372, 1373 [4th Dept 2018]), and defendant concedes thathe failed to preserve for our review his contention concerning prosecutorial misconduct onsummation. We decline to exercise our power to review those contentions as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). To the extent that defendant'scontention that he received ineffective assistance of counsel is based on matters outside therecord on appeal, his contention must be raised by way of a motion pursuant to CPL article 440(see generally People v Johnson, 81AD3d 1428, 1428 [4th Dept 2011], lv denied 16 NY3d 896 [2011]). To the extentthat we are able to review the remaining instances of alleged ineffective assistance on the recordbefore us, we conclude that he received meaningful representation (see generally People vBaldi, 54 NY2d 137, 147 [1981]).
Finally, the sentence imposed is not unduly harsh or severe. Present—Centra, J.P.,Peradotto, Lindley, DeJoseph and Curran, JJ.