THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. RODNEY BANKS DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed and the matter is remitted to Niagara County Court for proceedings pursuant to CPL 460.50(5).

Memorandum:  On appeal 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 seventh degree (§ 220.03), defendant contends that County Court erred in submitting its charge in writing to the jury during its deliberations.   We conclude that defendant waived that contention inasmuch as the court did so only after obtaining his consent (see generally People v. Pollard, 70 AD3d 1403;  People v. Backus, 67 AD3d 1428, lv denied 13 NY3d 936).   Defendant failed to preserve for our review his further contentions that the court erred in submitting the charge in writing absent a request by the jury (see CPL 470.05[2] ), and that his right of confrontation was violated by the admission in evidence of an out-of-court statement (see People v. Vaughan, 48 AD3d 1069, lv denied 10 NY3d 845, cert denied _ U.S. _, 129 S Ct 252).   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] ).   Even assuming, arguendo, that defendant preserved for our review his contention that the court erred in responding to a note from the jury during its deliberations, we conclude that the court's response addressed the jury's inquiry and was a proper statement of the law (see People v. Osborne, 63 AD3d 1707, 1708, lv denied 13 NY3d 748).   Defendant also failed to preserve for our review his challenge to the legal sufficiency of the evidence (see People v. Hines, 97 N.Y.2d 56, 61, rearg. denied 97 N.Y.2d 678), and in any event that challenge is without merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).   Finally, we reject the contention of defendant that he was denied effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147).

Patricia L. Morgan

Clerk of the Court