Opinion
No. KA 05-00006.
June 6, 2008.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered November 10, 2004. The judgment convicted defendant, upon a jury verdict, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR RESPONDENT.
Present: Scudder, P.J., Hurlbutt, Smith, Green and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her following a jury trial of criminal sale of a controlled substance in the third degree (Penal Law § 220.39) and criminal possession of a controlled substance in the third degree (§ 220.16 [1]), defendant contends that reversal is required based on County Court's refusal to charge criminal possession of a controlled substance in the seventh degree as a lesser included offense of criminal possession of a controlled substance in the third degree. We reject that contention. The subdivision of criminal possession of a controlled substance of which defendant was convicted is defined in relevant part as possession of a controlled substance with intent to sell it, while the lesser crime requires only possession. Because the jury found defendant guilty of criminal sale of a controlled substance, we conclude that any error in the court's refusal to charge the lesser included offense does not warrant reversal inasmuch as "[t]he verdict itself implies that [any] error did not affect the result" ( People v Ruiz, 223 AD2d 418, 419, lv denied 88 NY2d 853). We reject the further contention of defendant that the People's failure to provide her with information concerning the acts underlying the youthful offender adjudication of a confidential informant constitutes a Brady violation. Although the People have a duty to disclose exculpatory material, including "evidence impeaching the credibility of a prosecution witness whose testimony may be determinative of guilt or innocence" ( People v Baxley, 84 NY2d 208, 213, rearg dismissed 86 NY2d 886), "`[a] youthful offender adjudication is not a judgment of conviction for a crime,'" and thus information concerning those underlying acts does not constitute Brady material ( People v Fyffe, 249 AD2d 938, 938, lv denied 92 NY2d 897).
Defendant failed to preserve for our review her challenge to the court's ultimate Sandoval ruling ( see People v Brown, 39 AD3d 1207, lv denied 9 NY3d 921; People v Alston, 27 AD3d 1141, 1141-1142, lv denied 6 NY3d 892) and, in any event, that ruling did not constitute an abuse of discretion ( see Brown, 39 AD3d 1207). We reject the contentions of defendant that the court erred in limiting her cross-examination of the confidential informant ( see People v Colucci, 198 AD2d 825, lv denied 82 NY2d 923), and that she was denied a fair trial based upon cumulative error. Finally, the sentence is not unduly harsh or severe.