People v Cardova

People v Cardova 2012 NY Slip Op 08419 Decided on December 6, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 6, 2012
Gonzalez, P.J., Sweeny, Richter, Román, Clark, JJ.
8733 1779/09

[*1]The People of the State of New York, Respondent,

v

Julio Cardova, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Mark W. Zeno of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Clara H. Salzberg
of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Troy K. Webber, J.), rendered September 2, 2010, as amended September 17, 2010, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of four years, unanimously affirmed.

Defendant's legal sufficiency claim is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). The fact that defendant was acquitted of selling drugs but convicted of possessing drugs with intent to sell does not warrant a different
conclusion (see People v Rayam, 94 NY2d 557 [2000]; People v Johnson, 73 AD3d 578 [1st Dept 2010], lv denied 15 NY3d 893 [2010]; see also People v Conyers, 48 AD3d 362, 363 [2008], lv denied 10 NY3d 933 [2008]).

Defendant's claims relating to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v D'Alessandro, 184 AD2d 114, 118-119 [1st Dept 1992], lv denied 81 NY2d 884 [1993]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 6, 2012

CLERK