PEOPLE v. MCCLARY (2018)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him upon a jury verdict of, inter alia, four counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ) and five counts of criminal possession of a controlled substance in the third degree (§ 220.16[1] ), defendant contends that the evidence is legally insufficient to support the conviction.  Defendant failed to preserve his contention for our review, inasmuch as he made only a general motion for a trial order of dismissal with respect to all but one count (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ) and, with respect to that one count, he failed to renew his motion after presenting evidence (see People v. Hines, 97 N.Y.2d 56, 62, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001];  People v. Huitt, 149 A.D.3d 1481, 1482, 52 N.Y.S.3d 597 [4th Dept. 2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017] ).  We note, however, that “ ‘we necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant's challenge regarding the weight of the evidence’ ” (People v. Stepney, 93 A.D.3d 1297, 1298–1299, 940 N.Y.S.2d 752 [4th Dept. 2012], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ).  Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that 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 [1987] ).

Defendant failed to preserve for our review his contention that County Court improperly penalized him for exercising his right to a jury trial when it imposed a sentence greater than that offered during plea negotiations (see People v. Jackson, 159 A.D.3d 1372, 1373, 72 N.Y.S.3d 290 [4th Dept. 2018] ), and defendant concedes that he failed to preserve for our review his contention concerning prosecutorial misconduct on summation.  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] ).  To the extent that defendant's contention that he received ineffective assistance of counsel is based on matters outside the record on appeal, his contention must be raised by way of a motion pursuant to CPL article 440 (see generally People v. Johnson, 81 A.D.3d 1428, 1428, 917 N.Y.S.2d 487 [4th Dept. 2011], lv. denied 16 N.Y.3d 896, 926 N.Y.S.2d 31, 949 N.E.2d 979 [2011] ).  To the extent that we are able to review the remaining instances of alleged ineffective assistance on the record before us, we conclude that he received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).

Finally, the sentence imposed is not unduly harsh or severe.