Opinion
2000-11416
Submitted April 22, 2003.
May 19, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Giacobbe, J.), rendered November 27, 2000, convicting him of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree, and criminal use of drug paraphernalia in the second degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Donna Aldea of counsel; Daniel Bresnahan on the brief), for respondent.
Before: NANCY E. SMITH, J.P., HOWARD MILLER, BARRY A. COZIER, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his possession of cocaine and drug paraphernalia is unpreserved for appellate review (see CPL 470.05; People v. Gray, 86 N.Y.2d 10; People v. Udzinski, 146 A.D.2d 245, 250). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Skyles, 266 A.D.2d 321, 322; People v. Vega, 175 A.D.2d 932, 933). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15).
The defendant was afforded the effective assistance of counsel. Taking into consideration the totality of the evidence, the law, and the circumstances of the case, it is evident that trial counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708). Moreover, the defendant failed to demonstrate "the absence of strategic or other legitimate explanations" for trial counsel's failure to request a Darden hearing (People v. Darden 34 N.Y.2d 177) (People v. Rivera, 71 N.Y.2d 705, 709; see People v. Fields, 287 A.D.2d 577).
The defendant's contention that the trial court improvidently permitted an expert witness to give background testimony regarding "buy and bust" operations is unpreserved for appellate review and, in any event, is without merit. The trial court sustained many of the defense counsel's objections to this testimony. Additionally, the testimony that was permitted was brief, unspecific with respect to "buy and bust" operations, and relevant to establishing the basis of the expert's testimony regarding the packaging of narcotic drugs, and was not intended to give the unsupported impression that the defendant acted in concert (compare People v. Bethea, 261 A.D.2d 629, 630; People v. Colon, 238 A.D.2d 18).
The defendant's contention that the expert's testimony bolstered the testimony of the detective regarding the packaging of narcotic drugs is unpreserved for appellate review and, in any event, is without merit (see People v. Peoples, 202 A.D.2d 694, 695).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).
SMITH, J.P., H. MILLER, COZIER and RIVERA, JJ., concur.