Opinion
2015–10435 Ind.No. 2497/12
03-20-2019
The PEOPLE, etc., Respondent, v. Ingrid GORDON–PATTERSON, Appellant.
Laurette D. Mulry, Riverhead, N.Y. (Lisa A. Marcoccia of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Marcia R. Kucera, Timothy Finnerty, Lauren Tan, and Glenn Green of counsel), for respondent.
Laurette D. Mulry, Riverhead, N.Y. (Lisa A. Marcoccia of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Marcia R. Kucera, Timothy Finnerty, Lauren Tan, and Glenn Green of counsel), for respondent.
LEONARD B. AUSTIN, J.P., JOHN M. LEVENTHAL, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Suffolk County (Richard Ambro, J.), rendered August 25, 2015, convicting her of conspiracy in the second degree, conspiracy in the fourth degree, criminal possession of a weapon in the fourth degree, and criminal sale of a prescription for a controlled substance (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence is partially unpreserved for appellate review (see CPL 470.05[2] ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt, beyond a reasonable doubt, of conspiracy in the second degree, conspiracy in the fourth degree, and two counts of criminal sale of a prescription for a controlled substance (see People v. Cahill, 2 N.Y.3d 14, 57, 777 N.Y.S.2d 332, 809 N.E.2d 561 ). Moreover, upon our independent review of the record (see CPL 470.15[5] ), we are satisfied that the verdict of guilt as to those crimes was not against the weight of the evidence (see People v. Mateo , 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
The defendant's contention that the indictment was facially defective because it contained multiplicitous counts is unpreserved for appellate review (see People v. Cassidy , 133 A.D.2d 374, 519 N.Y.S.2d 275 ). In any event, the counts of conspiracy in the second degree and conspiracy in the fourth degree were not multiplicitous because those two counts were clearly distinct, and a conviction of one count would not be inconsistent with acquittal of the other (see People v. Saunders , 290 A.D.2d 461, 736 N.Y.S.2d 90 ).
The defendant's contention that certain testimony admitted at trial was unduly prejudicial and deprived her of a fair trial is unpreserved for appellate review (see CPL 470.05[2] ) and, in any event, without merit.
The defendant waived her contention that the County Court failed to conduct a "probing and tactful inquiry" of a juror before determining that the juror should be discharged for being grossly unqualified ( CPL 270.35[1], as defense counsel consented to the discharge of the juror.
The defendant failed to preserve for appellate review his challenge to the County Court's instructions to the jury in connection with the count of conspiracy in the fourth degree (see CPL 470.05[2] ). In any event, the court's charge, taken as a whole, conveyed the correct standard to the jury (see People v. Drake , 7 N.Y.3d 28, 32, 817 N.Y.S.2d 583, 850 N.E.2d 630 ; People v. Fields , 87 N.Y.2d 821, 637 N.Y.S.2d 355, 660 N.E.2d 1134 ).
The defendant's contention that she was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and thus, constitutes a mixed claim of ineffective assistance (see People v. Maxwell , 89 A.D.3d 1108, 933 N.Y.S.2d 386 ). It is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel. Since the defendant's ineffective assistance claim cannot be resolved in its entirety without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Tieman , 132 A.D.3d 703, 17 N.Y.S.3d 743 ; People v. Mills , 132 A.D.3d 698, 17 N.Y.S.3d 318 ; People v. Jemmott , 132 A.D.3d 697, 17 N.Y.S.3d 310 ).
The sentence imposed was not excessive (see People v. Suitte , 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
AUSTIN, J.P., LEVENTHAL, DUFFY and IANNACCI, JJ., concur.