Opinion
01-02-2015
The PEOPLE of the State of New York, Respondent, v. Grant A. EASLEY, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
PRESENT: SMITH, J.P., CENTRA, FAHEY, LINDLEY AND WHALEN, JJ.
MEMORANDUM: On appeal from a judgment convicting him upon a nonjury verdict of criminal possession of a controlled substance in the fourth degree ( Penal Law § 220.09[1] ), defendant contends that there was no probable cause to compel his pre-indictment DNA buccal swab (see generally Matter of Abe A., 56 N.Y.2d 288, 291, 452 N.Y.S.2d 6, 437 N.E.2d 265 ; People v. Smith, 95 A.D.3d 21, 24, 940 N.Y.S.2d 373 ). Defendant failed to preserve his contention for our review inasmuch as he did not move to suppress the DNA evidence obtained from the buccal swab (see People v. Brown, 92 A.D.3d 1216, 1216, 937 N.Y.S.2d 803, lv. denied 18 N.Y.3d 992, 945 N.Y.S.2d 647, 968 N.E.2d 1003 ; People v. Clark, 15 A.D.3d 864, 865, 788 N.Y.S.2d 800, lv. denied 4 N.Y.3d 885, 798 N.Y.S.2d 730, 831 N.E.2d 975 ), and we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
We reject defendant's further contention that he did not have actual or constructive possession of the drugs and thus that the evidence is legally insufficient to support the conviction. Viewing the evidence in the light most favorable to the People (see generally People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we conclude that there is a valid line of reasoning and permissible inferences that could lead the trier of fact to conclude that defendant constructively possessed the subject drugs (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Furthermore, viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we reject defendant's contention that the verdict is 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 ).
Defendant failed to preserve for our review his further contention that he was deprived of a fair trial by prosecutorial misconduct on summation (see CPL 470.05[2] ) and, in any event, that contention is without merit. The allegedly improper comments were "either a fair response to defense counsel's summation or fair comment on the evidence" ( People v. Santiago, 101 A.D.3d 1715, 1716, 957 N.Y.S.2d 535, lv. denied 21 N.Y.3d 946, 968 N.Y.S.2d 9, 990 N.E.2d 143 [internal quotation marks omitted]; see generally People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281 ).
Finally, defendant's sentence is not unduly harsh or severe. We note, however, that the certificate of conviction incorrectly reflects that defendant was sentenced as a second felony offender, and it therefore must be amended to reflect that he was sentenced as a second felony drug offender (see People v. Vasavada, 93 A.D.3d 893, 894, 938 N.Y.S.2d 924, lv. denied 19 N.Y.3d 978, 950 N.Y.S.2d 360, 973 N.E.2d 770 ; see also People v. Afrika, 79 A.D.3d 1678, 1680, 914 N.Y.S.2d 542, lv. denied 17 N.Y.3d 791, 929 N.Y.S.2d 99, 952 N.E.2d 1094 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.