PEOPLE v. McALLISTER (2007)

Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and criminal possession of a controlled substance in the fourth degree (§ 220.09[1] ).   Defendant failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence (see CPL 470.05[2];  People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396) and, in any event, defendant's contention lacks merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Also contrary to defendant's contention, the verdict is not against the weight of the evidence (see generally id.).

Supreme Court properly refused to suppress the evidence seized from defendant's motel room because defendant orally gave the police his consent to search the motel room (see generally People v. Williams, 202 A.D.2d 976, 612 N.Y.S.2d 985, lv. denied 83 N.Y.2d 916, 614 N.Y.S.2d 398, 637 N.E.2d 289).   Defendant failed to preserve for our review his further contention that the prosecutor violated the court's Sandoval ruling by eliciting facts that the court had ruled inadmissible (see People v. Freeman, 28 A.D.3d 1161, 1162, 813 N.Y.S.2d 597, lv. denied 7 N.Y.3d 788, 821 N.Y.S.2d 818, 854 N.E.2d 1282).   In any event, the alleged violation by the prosecutor with respect to the court's Sandoval ruling is harmless error (see People v. Grant, 7 N.Y.3d 421, 424-425, 823 N.Y.S.2d 757, 857 N.E.2d 52).

Defendant also failed to preserve for our review his contentions with respect to the jury charge (see CPL 470.05[2];  People v. Meagher, 4 A.D.3d 828, 829, 771 N.Y.S.2d 777, lv. denied 3 N.Y.3d 644, 782 N.Y.S.2d 415, 816 N.E.2d 205), and he failed to preserve for our review his contention that the indictment was duplicitous (see CPL 470.05[2];  People v. Dann, 17 A.D.3d 1152, 793 N.Y.S.2d 852, lv. denied 5 N.Y.3d 761, 801 N.Y.S.2d 255, 834 N.E.2d 1265).   We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Finally, defendant was not deprived of effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400), and the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: