PEOPLE v. WINSLOW

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Aubrey WINSLOW, Jr., Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  HURLBUTT, J.P., MARTOCHE, SMITH, PERADOTTO, AND GREEN, JJ. Frank H. HiscockLegal Aid Society, Syracuse (Mary P. Davison of Counsel), for Defendant-Appellant. Andrew M. Cuomo, Attorney General, Albany (Diana R.H. Winters of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him, following a jury trial, of criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [former (1) ] ) and conspiracy in the second degree (§ 105.15).   Insofar as defendant contends that the verdict is repugnant, he failed to preserve that contention for our review inasmuch as he failed to object to the verdict before the jury was discharged (see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280;  People v. Townsley, 50 A.D.3d 1610, 1611, 856 N.Y.S.2d 424, lv. denied 11 N.Y.3d 742, 864 N.Y.S.2d 400, 894 N.E.2d 664;  People v. Hamilton, 263 A.D.2d 966, 695 N.Y.S.2d 436, appeal dismissed 94 N.Y.2d 915, 707 N.Y.S.2d 622, 729 N.E.2d 341).   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Defendant further contends that the conviction is not supported by legally sufficient evidence because the testimony of the accomplice was not sufficiently corroborated.   Defendant failed to move for a trial order of dismissal on that ground and thus failed to preserve that contention for our review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Waldriff, 46 A.D.3d 1448, 847 N.Y.S.2d 795, lv. denied 9 N.Y.3d 1040, 852 N.Y.S.2d 25, 881 N.E.2d 1212;  People v. Sanchez, 31 A.D.3d 1218, 817 N.Y.S.2d 842, lv. denied 7 N.Y.3d 869, 870, 824 N.Y.S.2d 614, 857 N.E.2d 1145).   In any event, that contention is without merit.   The evidence that corroborated the testimony of the accomplice included the testimony of police officers who kept surveillance on the vehicle in which defendant was a passenger and in which the drugs were found;  the receipt for the motel room where defendant and his codefendants, including the accomplice in question, spent the night after purchasing the drugs;  and the tape-recorded telephone conversations between the drug supplier and a codefendant who was seated next to defendant.

 Contrary to the further contention of defendant, County Court did not abuse its discretion in denying his request for a missing witness instruction.   The People met their burden of establishing that the witness in question was not under their control by demonstrating that he would not be expected to testify in their favor (see People v. Brent-Pridgen, 48 A.D.3d 1054, 1055, 850 N.Y.S.2d 760, lv. denied 10 N.Y.3d 860, 860 N.Y.S.2d 486, 890 N.E.2d 249;  People v. Jean-Baptiste, 37 A.D.3d 852, 829 N.Y.S.2d 919;  see generally People v. Savinon, 100 N.Y.2d 192, 197, 761 N.Y.S.2d 144, 791 N.E.2d 401;  People v. Gonzalez, 68 N.Y.2d 424, 428-429, 509 N.Y.S.2d 796, 502 N.E.2d 583).

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

MEMORANDUM: