Opinion
10-18-2017
The PEOPLE, etc., respondent, v. Robert Salem PERDOMO, also known as Robert Salemperdomo, appellant.
Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, NY (Elizabeth Miller of counsel), for respondent.
Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Elizabeth Miller of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Camacho, J.), rendered March 25, 2015, convicting him of criminal possession of a controlled substance in the third degree (three counts), criminal possession of a controlled substance in the fourth degree, and criminally using drug paraphernalia in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence supporting his convictions was legally insufficient is unpreserved for appellate review (see CPL 470.05 [2 ]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. The evidence established that the defendant exercised a sufficient level of dominion and control over storage units where heroin, cocaine, and drug paraphernalia were found to support the jury's finding that he constructively possessed the heroin, cocaine, and drug paraphernalia (see People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 ; People v. Johnson, 54 A.D.3d 969, 971, 864 N.Y.S.2d 132 ). Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that certain remarks made by the prosecutor during summation were improper and deprived him of a fair trial is without merit, as the challenged remarks were not so flagrant or pervasive as to deprive the defendant of a fair trial (see People v. Singletary, 132 A.D.3d 914, 17 N.Y.S.3d 889 ; People
v. Mamadou, 129 A.D.3d 993, 994, 13 N.Y.S.3d 440 ; People v. Fields, 115 A.D.3d 673, 674, 981 N.Y.S.2d 538 ). To the extent that any prejudicial effect may have resulted from any of the challenged remarks, it was ameliorated by the County Court's instructions to the jury (see People v. Murphy, 133 A.D.3d 690, 691, 20 N.Y.S.3d 127 ; People v. Philips, 120 A.D.3d 1266, 1268, 992 N.Y.S.2d 104 ; People v. Flowers, 102 A.D.3d 885, 886, 958 N.Y.S.2d 206 ).
The defendant's claim that he was deprived of the effective assistance of counsel is without merit, as he did not demonstrate that there was no strategic or legitimate explanation for the defense attorneys' allegedly deficient conduct, or that they otherwise failed to provide meaningful representation (see People v. Barboni, 21 N.Y.3d 393, 405–406, 971 N.Y.S.2d 729, 994 N.E.2d 820 ; People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ). Viewed in their totality, the circumstances reveal that the defense attorneys provided meaningful representation (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; People v. Benevento, 91 N.Y.2d at 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 ).
The defendant's contention that the County Court, by the sentence it imposed after trial, penalized him for exercising his right to a trial is unpreserved for appellate review (see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017 ; People v. Arnold, 139 A.D.3d 748, 750, 30 N.Y.S.3d 333 ; People v. Prince, 128 A.D.3d 987, 988, 10 N.Y.S.3d 146 ). In any event, the record does not indicate any retaliation or vindictiveness against the defendant for electing to proceed to trial (see People v. Seymore, 106 A.D.3d 1033, 1034, 964 N.Y.S.2d 668 ; People v. Griffin, 98 A.D.3d 688, 690, 950 N.Y.S.2d 161 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions are without merit.