Opinion
2014-02-14
The PEOPLE of the State of New York, Respondent, v. Michael S. WHITE, also known as Michael Brewer, Defendant–Appellant.
Leanne Lapp, Public Defender, Canandaigua, Muldoon & Getz, Rochester (Gary Muldoon of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (James Ritts of Counsel), for Respondent.
Leanne Lapp, Public Defender, Canandaigua, Muldoon & Getz, Rochester (Gary Muldoon of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (James Ritts of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, and SCONIERS, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, following a nonjury trial, of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ). Contrary to defendant's contention, he was not denied his constitutional right to proceed pro se. Defendant's request to proceed pro se “was made in the context of a claim expressing his dissatisfaction with his attorney and was not unequivocal” ( People v. Alexander, 109 A.D.3d 1083, 1084, 972 N.Y.S.2d 124;see People v. Gillian, 8 N.Y.3d 85, 88, 828 N.Y.S.2d 277, 861 N.E.2d 92;People v. Caswell, 56 A.D.3d 1300, 1301–1302, 867 N.Y.S.2d 638,lv. denied11 N.Y.3d 923, 874 N.Y.S.2d 8, 902 N.E.2d 442). We note in any event that defendant thereafter “abandoned his request to proceed pro se and, instead, requested the assignment of new counsel” ( People v. Grippo, 124 A.D.2d 985, 986, 508 N.Y.S.2d 803,lv. denied69 N.Y.2d 881, 515 N.Y.S.2d 1028, 507 N.E.2d 1098;see Gillian, 8 N.Y.3d at 88, 828 N.Y.S.2d 277, 861 N.E.2d 92;Alexander, 109 A.D.3d at 1084, 972 N.Y.S.2d 124;People v. Mercer, 66 A.D.3d 1368, 1370, 887 N.Y.S.2d 384,lv. denied13 N.Y.3d 940, 895 N.Y.S.2d 331, 922 N.E.2d 920).
Defendant's challenge to the legal sufficiency of the evidence is unpreserved for our review inasmuch as he failed to move for a trial order of dismissal at the close of the People's case ( see People v. Jamieson, 88 A.D.3d 1298, 1298, 930 N.Y.S.2d 748;People v. Batjer, 77 A.D.3d 1279, 1279, 908 N.Y.S.2d 285,lv. denied17 N.Y.3d 951, 936 N.Y.S.2d 77, 959 N.E.2d 1026;see generally CPL 470.05[2] ). In any event, we conclude that the evidence is legally sufficient to establish defendant's intent to sell the narcotic drugs in his possession ( see People v. Alverson, 79 A.D.3d 1787, 1788, 913 N.Y.S.2d 458;see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Viewing the evidence in light of the elements of the crime in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Defendant's contention that a police witness lacked sufficient experience to testify as an expert with respect to defendant's intent to sell is unpreserved for our review inasmuch as he failed to object to that testimony ( see People v. Snyder, 100 A.D.3d 1367, 1369, 953 N.Y.S.2d 430,lv. denied21 N.Y.3d 1010, 971 N.Y.S.2d 262, 993 N.E.2d 1285 ;People v. Hamilton, 96 A.D.3d 1518, 1519, 947 N.Y.S.2d 705,lv. denied19 N.Y.3d 997, 951 N.Y.S.2d 473, 975 N.E.2d 919;see also People v. Scully, 61 A.D.3d 1364, 1365, 877 N.Y.S.2d 782,affd.14 N.Y.3d 861, 903 N.Y.S.2d 302, 929 N.E.2d 364), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.