PEOPLE v. OVERTON

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

The PEOPLE of the State of New York, Respondent, v. James OVERTON, Defendant-Appellant.

Decided: October 29, 2009

SWEENEY, J.P., BUCKLEY, DeGRASSE, FREEDMAN, ABDUS-SALAAM, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Seon Jeong Lee of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (David P. Stromes of counsel), for respondent.

Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered November 26, 2007, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree (two counts), criminal possession of a controlled substance in the third and fifth degrees, criminal possession of a weapon in the fourth degree, and bail jumping, and sentencing him to an aggregate term of 9 years for the drug and weapon convictions, consecutive to a term of 1 to 3 years for the bail jumping conviction, unanimously affirmed.

 Since defendant objected on different grounds from those he raises on appeal, he has not preserved his present challenge to the introduction into evidence of a letter found on his person that contained instructions for completing a particular drug transaction, and we decline to review it in the interest of justice.   As an alternative holding, we also reject it on the merits.   The letter was not hearsay, since it was not received for the truth of its contents, but to demonstrate defendant's intent to sell the drugs he possessed.   The letter was intended to convey instructions, not assertions of fact (see People v. Mixon, 292 A.D.2d 177, 739 N.Y.S.2d 46 [2002], lv. denied 98 N.Y.2d 678, 746 N.Y.S.2d 468, 774 N.E.2d 233 [2002] ).

The surcharges and fees were properly imposed (see People v. Guerrero, 12 N.Y.3d 45, 876 N.Y.S.2d 687, 904 N.E.2d 823 [2009] ).

We perceive no basis for reducing the sentence.