| People v Gordon-Patterson |
| 2019 NY Slip Op 02113 [170 AD3d 1037] |
| March 20, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ingrid Gordon-Patterson, Appellant. |
Laurette D. Mulry, Riverhead, NY (Lisa A. Marcoccia of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Marcia R. Kucera, Timothy Finnerty,Lauren Tan, and Glenn Green of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (RichardAmbro, J.), rendered August 25, 2015, convicting her of conspiracy in the second degree,conspiracy in the fourth degree, criminal possession of a weapon in the fourth degree, andcriminal sale of a prescription for a controlled substance (two counts), upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence is partially unpreserved forappellate review (see CPL 470.05 [2]). In any event, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we findthat it was legally sufficient to establish the defendant's guilt, beyond a reasonable doubt, ofconspiracy in the second degree, conspiracy in the fourth degree, and two counts of criminal saleof a prescription for a controlled substance (see People v Cahill, 2 NY3d 14, 57 [2003]). Moreover, upon ourindependent review of the record (see CPL 470.15 [5]), we are satisfied that the verdict ofguilt as to those crimes was not against the weight of the evidence (see People v Mateo, 2NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).
The defendant's contention that the indictment was facially defective because it containedmultiplicitous counts is unpreserved for appellate review (see People v Cassidy, 133AD2d 374 [1987]). In any event, the counts of conspiracy in the second degree and conspiracy inthe fourth degree were not multiplicitous because those two counts were clearly distinct, and aconviction of one count would not be inconsistent with acquittal of the other (see People vSaunders, 290 AD2d 461 [2002]).
The defendant's contention that certain testimony admitted at trial was unduly prejudicial anddeprived her of a fair trial is unpreserved for appellate review (see CPL 470.05 [2]) and,in any event, without merit.
The defendant waived her contention that the County Court failed to conduct a "probing andtactful inquiry" of a juror before determining that the juror should be discharged for being grosslyunqualified (CPL 270.35 [1]), as defense counsel consented to the discharge of the juror.
The defendant failed to preserve for appellate review his challenge to the County Court'sinstructions to the jury in connection with the count of conspiracy in the fourth degree(see CPL 470.05 [2]). In any event, the court's charge, taken as a whole, conveyed thecorrect standard to the jury (see People vDrake, 7 NY3d 28, 32 [2006]; People v Fields, 87 NY2d 821 [1995]).
The defendant's contention that she was deprived of the effective assistance of counsel isbased, in part, on matter appearing on the record and, in part, on matter outside the record, andthus, constitutes a mixed claim of ineffective assistance (see People v Maxwell, 89 AD3d 1108 [2011]). It is not evidentfrom the matter appearing on the record that the defendant was deprived of the effectiveassistance of counsel. Since the defendant's ineffective assistance claim cannot be resolved in itsentirety without reference to matter outside the record, a CPL 440.10 proceeding is theappropriate forum for reviewing the claim in its entirety (see People v Tieman, 132 AD3d 703 [2015]; People v Mills, 132 AD3d 698[2015]; People v Jemmott, 132AD3d 697 [2015]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Austin, J.P., Leventhal, Duffy and Iannacci, JJ., concur.