PEOPLE v. WILCHER (2018)

MEMORANDUM AND ORDER

Defendant appeals from a judgment convicting him, upon a nonjury verdict, of criminal sale of a controlled substance in the first degree (Penal Law § 220.43[1] ) and two counts of criminal possession of a controlled substance in the third degree (§ 220.16[1], [12] ).  Defendant failed to preserve for our review the contention in his main brief that the evidence is legally insufficient to support the conviction because the testimony of the confidential informant was incredible as a matter of law (see People v. Gaston, 100 A.D.3d 1463, 1464, 953 N.Y.S.2d 780 [4th Dept. 2012];  see also People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ) and, in any event, that contention lacks merit.  The confidential informant's testimony “was not incredible as a matter of law inasmuch as it was not impossible of belief, i.e., it was not manifestly untrue, physically impossible, contrary to experience, or self-contradictory” (People v. Harris, 56 A.D.3d 1267, 1268, 868 N.Y.S.2d 448 [4th Dept. 2008], lv denied 11 N.Y.3d 925, 874 N.Y.S.2d 10, 902 N.E.2d 444 [2009] ).  The confidential informant's extensive criminal history and receipt of favorable treatment in exchange for his testimony do not render his testimony incredible as a matter of law (see People v. Hodge, 147 A.D.3d 1502, 1503, 47 N.Y.S.3d 559 [4th Dept. 2017], lv denied 29 N.Y.3d 1032, 62 N.Y.S.3d 301, 84 N.E.3d 973 [2017];  People v. Carr, 99 A.D.3d 1173, 1174, 952 N.Y.S.2d 342 [4th Dept. 2012], lv denied 20 N.Y.3d 1010, 960 N.Y.S.2d 353, 984 N.E.2d 328 [2013] ).  Those facts were placed before the court, and we see no basis to disturb its credibility determination (see Carr, 99 A.D.3d at 1174, 952 N.Y.S.2d 342).  Furthermore, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the evidence is legally sufficient to support the conviction with respect to each count (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987];  People v. Bausano, 122 A.D.3d 1341, 1342, 996 N.Y.S.2d 834 [4th Dept. 2014], lv denied 25 N.Y.3d 1069, 12 N.Y.S.3d 620, 34 N.E.3d 371 [2015];  People v. Nicholson, 238 A.D.2d 924, 924, 661 N.Y.S.2d 565 [4th Dept. 1997], lv denied 90 N.Y.2d 908, 663 N.Y.S.2d 520, 686 N.E.2d 232 [1997] ).  Additionally, viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention in his main brief that the verdict is against the weight of the evidence (see Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

We reject defendant's further contention in his main and pro se supplemental briefs that he was denied effective assistance of counsel.  We conclude that defendant has not sustained his burden of establishing “that his attorney ‘failed to provide meaningful representation’ that compromised ‘his right to a fair trial’ ” (People v. Pavone, 26 N.Y.3d 629, 647, 26 N.Y.S.3d 728, 47 N.E.3d 56 [2015] ).  Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ), we conclude that defendant received meaningful representation (see generally People v. Wragg, 26 N.Y.3d 403, 409, 23 N.Y.S.3d 600, 44 N.E.3d 898 [2015] ).  To the extent that defendant raises in his main and pro se supplemental briefs contentions regarding alleged instances of ineffective assistance of counsel that are based upon matters outside the record on appeal, those contentions must be raised by way of a motion pursuant to CPL 440.10 (see People v. Streeter, 118 A.D.3d 1287, 1289, 987 N.Y.S.2d 775 [4th Dept. 2014], lv denied 23 N.Y.3d 1068, 994 N.Y.S.2d 327, 18 N.E.3d 1148 [2014], reconsideration denied 24 N.Y.3d 1047, 998 N.Y.S.2d 317, 23 N.E.3d 160 [2014] ).

Contrary to defendant's further contention, the sentence is not unduly harsh or severe.  Finally, we have considered the remaining contentions raised by defendant in his pro se supplemental brief and conclude that none warrants modification or reversal of the judgment.

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

Memorandum: