People v Dillon

People v Dillon 2007 NY Slip Op 02192 [38 AD3d 1211] March 16, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

The People of the State of New York, Respondent, v Dana L. Dillon, Appellant.

—[*1] Tully, Rinckey & Associates, PLLC, Albany (Mathew B. Tully of counsel), for defendant-appellant.

Susan H. Lindenmuth, District Attorney, Penn Yan, for respondent.

Appeal from a judgment of the Yates County Court (Dennis F. Bender, J.), rendered November 10, 2005. The judgment convicted defendant, upon a jury verdict, of criminal sale of a controlled substance in the third degree (two counts) and criminal sale of a controlled substance in the fourth degree (four counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence imposed on each count of criminal sale of a controlled substance in the third degree to an indeterminate term of incarceration of 4 to 12 years and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting her, upon a jury verdict, of two counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), and four counts of criminal sale of a controlled substance in the fourth degree (§ 220.34 [1]). Contrary to the contention of defendant, she was not denied effective assistance of counsel (see generally People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]). Defendant failed to preserve for our review her further contention that she was denied a fair trial based on prosecutorial misconduct on summation (see CPL 470.05 [2]), 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]). Contrary to defendant's further contention, we conclude that County Court did not err in refusing to suppress a book concerning prescription drugs found in defendant's automobile when it was impounded and its contents were inventoried. The record establishes that there was a sufficient basis to conclude that defendant's automobile was used in the commission of a crime (see People v White, 262 AD2d 122 [1999], lv denied 93 NY2d 1029 [1999]).

We agree with defendant, however, that the sentence is unduly harsh and severe. Thus, as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]), we modify the judgment by reducing the sentence imposed on each count of criminal sale of a controlled substance in the third degree to an indeterminate term of incarceration of 4 to 12 years. Present—Hurlbutt, J.P., Martoche, Centra, Fahey and Green, JJ.