PEOPLE v. DILLON (2006)

Defendant appeals from a judgment convicting him after a jury trial of three counts of criminal sale of a controlled substance in the fourth degree (Penal Law § 220.34[1] ) and one count of criminal diversion of prescription medications and prescriptions in the fourth degree (§ 178.10).   Defendant failed to preserve for our review his contention concerning alleged misconduct by the prosecutor in his opening and closing statements, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see People v. Butler, 2 A.D.3d 1457, 1458, 769 N.Y.S.2d 768, lv. denied 3 N.Y.3d 637, 782 N.Y.S.2d 408, 816 N.E.2d 198).   Contrary to the further contention of defendant, he was not prejudiced by the delayed disclosure of Brady material because the record establishes that he was “ ‘given a meaningful opportunity to use the ․ exculpatory material to cross-examine the People's witnesses or as evidence during his case’ ” (People v. Bonilla, 298 A.D.2d 871, 871, 747 N.Y.S.2d 830, lv. denied 99 N.Y.2d 555, 754 N.Y.S.2d 207, 784 N.E.2d 80, 100 N.Y.2d 536, 763 N.Y.S.2d 1, 793 N.E.2d 415, quoting People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349).   The verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant also failed to preserve for our review his contention that County Court penalized him for exercising his right to a jury trial by imposing a sentence greater than that offered as part of the plea bargain (see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017;  People v. White, 12 A.D.3d 1200, 785 N.Y.S.2d 262, lv. denied 4 N.Y.3d 768, 792 N.Y.S.2d 12, 825 N.E.2d 144) and, in any event, that contention lacks merit (see White, 12 A.D.3d 1200, 785 N.Y.S.2d 262).   Finally, 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: