Opinion
KA 04-00094.
November 10, 2005.
Appeal from a judgment of the Monroe County Court (John J. Connell, J.), rendered February 7, 2003. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the fourth degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (TIMOTHY P. DONAHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (MARGARET A. JONES OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present — Kehoe, J.P., Martoche, Pine, Lawton and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09). We reject his contention that the verdict is against the weight of the evidence ( see generally People v. Bleakley, 69 NY2d 490, 495). At trial, defendant contended only that accomplice liability should not be charged because that theory was not alleged in the indictment, and thus defendant failed to preserve for our review his present contention that County Court erred in instructing the jury with respect to accomplice liability because the evidence did not support such a charge ( see generally People v. Balls, 69 NY2d 641). In any event, that contention lacks merit. The evidence at trial was sufficient to establish that defendant "solicit[ed], request[ed], command[ed] . . . [or] importun[ed]" the passenger in his vehicle to take possession of the cocaine later recovered by the police from her (Penal Law § 20.00; see People v. Rosario, 277 AD2d 943, 944, affd 96 NY2d 857). Defendant also failed to preserve for our review his contention that the court erred in refusing to suppress the drugs seized from him ( see People v. Vasquez, 66 NY2d 968, 970, cert denied 475 US 1109; People v. Mitchell, 303 AD2d 422, 423, lv denied 100 NY2d 564), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Finally, the sentence is not unduly harsh or severe.