People v. Russaw

• Court: New York Supreme Court — Appellate Division
• Citation: People v. Russaw, 2014 NY Slip Op 1055, 114 A.D.3d 1261, 980 N.Y.S.2d 218 (N.Y. App. Div. 2014)
• Decision Date: 14 February 2014
• Parties: The PEOPLE of the State of New York, Respondent, v. Cheyenne J. RUSSAW, Jr., Defendant–Appellant.

114 A.D.3d 1261

980 N.Y.S.2d 218

2014 N.Y. Slip Op. 01055

The PEOPLE of the State of New York, Respondent,

v.Cheyenne J. RUSSAW, Jr., Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Feb. 14, 2014.

Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of Counsel), for Defendant–Appellant.

Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, and SCONIERS, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1] ). Defendant failed to preserve for our review his contention that County Court committed several errors in allowing the jurors to take notes and in instructing the jurors with respect to note-taking, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see People v. Green, 35 A.D.3d 1197, 1198, 826 N.Y.S.2d 921,lv. denied8 N.Y.3d 922, 834 N.Y.S.2d 513, 866 N.E.2d 459;People v. Valiente, 309 A.D.2d 562, 562, 765 N.Y.S.2d 503,lv. denied1 N.Y.3d 602, 776 N.Y.S.2d 233, 808 N.E.2d 369). Contrary to defendant's further contention, the evidence is legally sufficient to establish that he constructively possessed the controlled substance. “Where ... there is no evidence that defendant actually possessed the controlled substance, the People must establish that defendant exercised dominion or control over the property by a sufficient level of control over the area in which the contraband [was] found or over the person from whom the contraband [was] seized” ( People v. Pichardo, 34 A.D.3d 1223, 1224, 825 N.Y.S.2d 603,lv. denied8 N.Y.3d 926, 834 N.Y.S.2d 516, 866 N.E.2d 462 [internal quotation marks omitted]; see People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563;see also § 10.00[8] ). Here, we conclude that the evidence, viewed in the light most favorable to the People ( see People v. Hines, 97 N.Y.2d 56, 62, 736 N.Y.S.2d 643, 762 N.E.2d 329,rearg. denied97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;People v. Williams, 84 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367), is legally sufficient to establish that defendant constructively possessed the controlled substance ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Also contrary to defendant's contention, viewing the evidence in light of the elements of the crime as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), 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).

We reject defendant's further contentions that he was denied effective assistance of counsel ( see generally People v. Baldi, 54...