THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. CHEYENNE RUSSAW JR DEFENDANT APPELLANT (2014)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1] ).   Defendant failed to preserve for our review his contention that County Court committed several errors in allowing the jurors to take notes and in instructing the jurors with respect to note-taking, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see People v. Green, 35 AD3d 1197, 1198, lv denied 8 NY3d 922;  People v. Valiente, 309 A.D.2d 562, 562, lv denied 1 NY3d 602).   Contrary to defendant's further contention, the evidence is legally sufficient to establish that he constructively possessed the controlled substance.  “Where ․ there is no evidence that defendant actually possessed the controlled substance, the People must establish that defendant exercised dominion or control over the property by a sufficient level of control over the area in which the contraband [was] found or over the person from whom the contraband [was] seized” (People v. Pichardo, 34 AD3d 1223, 1224, lv denied 8 NY3d 926 [internal quotation marks omitted];  see People v. Manini, 79 N.Y.2d 561, 573;  see also § 10.00[8] ).   Here, we conclude that the evidence, viewed in the light most favorable to the People (see People v. Hines, 97 N.Y.2d 56, 62, rearg. denied 97 N.Y.2d 678;  People v. Williams, 84 N.Y.2d 925, 926), is legally sufficient to establish that defendant constructively possessed the controlled substance (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Also contrary to defendant's contention, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).

We reject defendant's further contentions that he was denied effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147), and that the sentence is unduly harsh and severe.   Finally, we have reviewed defendant's remaining contention and conclude that it does not require reversal or modification of the judgment of conviction.

Frances E. Cafarell

Clerk of the Court