PEOPLE v. POTTS (2008)

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Donnino, J.), rendered September 20, 2004, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2];  People v. Oates, 33 A.D.3d 823, 823 N.Y.S.2d 184;  People v. Jones, 309 A.D.2d 819, 819-820, 765 N.Y.S.2d 661).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of all counts beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's contention, raised in his supplemental pro se brief, that the testimony of a jailhouse informant was improperly admitted at trial because the informant was an agent for the police, is without merit (see Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246;  People v. Cardona, 41 N.Y.2d 333, 392 N.Y.S.2d 606, 360 N.E.2d 1306;  People v. Jean, 13 A.D.3d 466, 467, 786 N.Y.S.2d 564;  People v. Flores-Ossa, 234 A.D.2d 315, 316, 652 N.Y.S.2d 44).

 The defendant failed to preserve his claim, made in his supplemental pro se brief, that the court erred in failing to give an accomplice charge, because he neither requested such a charge nor specifically objected to the court's failure to give it (see CPL 470.05[2];  People v. Lipton, 54 N.Y.2d 340, 351, 445 N.Y.S.2d 430, 429 N.E.2d 1059;  People v. Edwards, 28 A.D.3d 491, 492, 811 N.Y.S.2d 586).   In any event, this contention is without merit.

 Portions of the defendant's claim of ineffective assistance of counsel, raised in his supplemental pro se brief, are based on matter dehors the record which cannot be reviewed on direct appeal (see People v. Kadry, 30 A.D.3d 440, 817 N.Y.S.2d 97;  People v. Wingate, 297 A.D.2d 761, 762, 747 N.Y.S.2d 791).   To the extent that this claim can be reviewed, the defendant received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675).

The defendant's remaining contentions, raised in his supplemental pro se brief, are without merit.