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People v. Luchey

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 15, 1995
221 A.D.2d 936 (N.Y. App. Div. 1995)

Opinion

November 15, 1995

Appeal from the Erie County Court, Rogowski, J.

Present — Pine, J.P., Fallon, Wesley, Doerr and Davis, JJ.


Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of criminal possession of a controlled substance in the first degree (Penal Law § 220.21; § 20.00), conspiracy in the second degree (Penal Law § 105.15) and criminal solicitation in the second degree (Penal Law § 100.10).

The contention that the evidence is legally insufficient to prove defendant's knowledge of the weight of the controlled substance has not been preserved by a motion to dismiss "`specifically directed'" at the alleged defect in the proof (People v Gray, 86 N.Y.2d 10, 19, quoting People v Cona, 49 N.Y.2d 26, 33, n 2; see, People v Cedeno, 219 A.D.2d 828), 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]).

The contention that County Court erred in admitting into evidence audio tapes of defendant's conversations with Patrick Sullivan on February 21 and 23, 1990, has not been preserved for our review because defendant failed to object to the admission of that evidence at trial (see, CPL 470.05). In any event, that contention lacks merit (see, People v Maderic, 142 A.D.2d 892). Moreover, the court did not abuse its discretion in permitting the People to use the transcripts of those conversations to refresh the recollection of a witness (see, People v Di Loretto, 150 A.D.2d 920, lv denied 74 N.Y.2d 739).

Defendant was not denied effective assistance of counsel (see, People v Hobot, 84 N.Y.2d 1021, 1022; People v Flores, 84 N.Y.2d 184). Furthermore, the court did not err in denying defendant's request to dismiss a sworn juror. Contrary to the contention of defendant, the record establishes that the juror was not incapable of rendering an impartial verdict (see, People v Buford, 69 N.Y.2d 290, 298-299). Additionally, there is no merit to the contention that defendant was denied his fundamental right to be present at all material stages of the proceedings against him when the court questioned three jurors for possible disqualification in defendant's absence (see, People v Torres, 80 N.Y.2d 944, 945, rearg denied 81 N.Y.2d 784; People v Spataro, 202 A.D.2d 1005, lv denied 84 N.Y.2d 833; People v Williams, 202 A.D.2d 1004).

Defendant was not denied his constitutional (see, People v Taranovich, 37 N.Y.2d 442, 445) or statutory (see, People v Kendzia, 64 N.Y.2d 331, 337) right to a speedy trial. Upon our review of the record, we conclude that the sentence is neither unduly harsh nor severe.

We have reviewed the remaining contentions advanced by defendant, including those raised in defendant's pro se supplemental brief, and we conclude that they are lacking in merit.


Summaries of

People v. Luchey

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 15, 1995
221 A.D.2d 936 (N.Y. App. Div. 1995)
Case details for

People v. Luchey

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DERRICK M. LUCHEY…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 15, 1995

Citations

221 A.D.2d 936 (N.Y. App. Div. 1995)
634 N.Y.S.2d 304

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