People v Lewis

People v Lewis 2006 NY Slip Op 09873 [35 AD3d 1256] December 22, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

The People of the State of New York, Respondent, v Anthony A. Lewis, Appellant. (Appeal No. 1.)

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Appeal from a judgment of the Steuben County Court (Marianne Furfure, J.), rendered October 12, 2004. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the fourth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: In each appeal, defendant appeals from a judgment convicting him following a jury trial on two consolidated indictments. In appeal No. 1, he was convicted of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09 [1]), and in appeal No. 2 he was convicted of two counts of criminal possession of a controlled substance in the third degree (§ 220.16 [1]), and one count of criminal sale of a controlled substance in the third degree (§ 220.39 [1]). We reject defendant's contention that the evidence is legally insufficient to support the conviction in each appeal (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant failed to preserve for our review his further contention that County Court erred in permitting the undercover police officer to testify concerning the interaction between defendant and the individual from whom the officer purchased the drugs (see CPL 470.05 [2]). In any event, even assuming, arguendo, that the court erred in admitting that testimony, we conclude that the error is harmless (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]). Defendant also failed to preserve for our review his contention that the court's Sandoval ruling constituted an abuse of discretion (see People v Barry, 34 AD3d 1258 [2006]), 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 [6] [a]). Finally, the sentence is not unduly harsh or severe. Present—Gorski, J.P., Martoche, Smith, Green and Pine, JJ.