PEOPLE v. LEFTWICH (1999)

 Defendant failed to preserve for our review his contention that the evidence is insufficient to establish his constructive possession of cocaine found in an apartment (see, CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, that contention lacks merit.   The evidence is sufficient to establish defendant's exercise of “dominion and control” over the apartment (People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563).   Defendant also failed to preserve for our review his contention that County Court erred in failing to conduct a hearing to determine the nature and scope of defendant's alleged cooperation agreement with police (see, People v. Argentine, 67 A.D.2d 180, 414 N.Y.S.2d 732).   Defendant never moved to dismiss the indictment based on that alleged agreement (cf., People v. Fraisier, 253 A.D.2d 437, 675 N.Y.S.2d 900;  People v. Gupta [Appeal No. 3], 80 A.D.2d 743, 437 N.Y.S.2d 175).

The verdict convicting defendant of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Finally, in light of defendant's prior criminal history, including convictions for prior drug related offenses, the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: