Opinion
KA 01-01600
December 30, 2002.
Appeal from a judgment of Orleans County Court (Punch, J.), entered April 6, 2001, convicting defendant after a jury trial of, inter alia, criminal sale of a controlled substance in the third degree.
KATHLEEN E. CASEY, MIDDLEPORT, FOR DEFENDANT-APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of criminal possession and criminal sale of a controlled substance in the third degree (Penal Law § 220.16; § 220.39 [1]). The evidence, viewed in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621), is legally sufficient to support the conviction, and the verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495). Defendant failed to preserve for our review his contention that County Court erred in failing to instruct the jury concerning his alibi defense ( see CPL 470.05; People v. Hogan, 292 A.D.2d 834, lv denied 98 N.Y.2d 676), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). The further contention of defendant that he received ineffective assistance of counsel because defense counsel failed to request an alibi instruction is raised for the first time in defendant's reply brief and thus is not properly before us ( see People v. Williams, 292 A.D.2d 843, lv denied 98 N.Y.2d 703; People v. Minota, 137 A.D.2d 837, 838, lv denied 71 N.Y.2d 1030).