Opinion
2012-02-16
The PEOPLE of the State of New York, Respondent, v. Anthony TOXEY, Defendant–Appellant.
Stanley Neustadter, Cardozo Appeals Clinic, New York (Dov Gold–Medina of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Deborah L. Morse of counsel), for respondent.
Stanley Neustadter, Cardozo Appeals Clinic, New York (Dov Gold–Medina of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Deborah L. Morse of counsel), for respondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered March 3, 2009, as amended November 12, 2009, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and fifth degrees, criminal possession of marihuana, and three counts of criminal use of drug paraphernalia in the second degree, and sentencing him, as a second felony drug offender, to an aggregate term of 11 years, unanimously affirmed.
Defendant did not preserve his challenge to the court's use of hypothetical examples in its supplemental instructions on constructive possession, and we decline to review it in the interest of justice. As an alternative holding, we find that the court provided a meaningful response to the jury's request for further instructions on the issue ( see *436 People v. Malloy, 55 N.Y.2d 296, 449 N.Y.S.2d 168, 434 N.E.2d 237 [1982], cert. denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93 [1982] ). The court's use of a set of hypotheticals was balanced and fair to the positions of both sides, and the court did not signal any opinion on the question of guilt or innocence ( see People v. Leach, 6 A.D.3d 238, 239, 774 N.Y.S.2d 335 [2004], lv. denied 3 N.Y.3d 643, 782 N.Y.S.2d 414, 816 N.E.2d 204 [2004] ).
We perceive no basis for reducing the sentence.