Opinion
771 KA 13-02207
06-12-2015
The PEOPLE of the State of New York, Respondent, v. Keith A. SMITH, Defendant–Appellant.
Cara A. Waldman, Fairport, for Defendant–Appellant. Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of Counsel), for Respondent.
Cara A. Waldman, Fairport, for Defendant–Appellant.
Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, VALENTINO, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him of two counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ), four counts of criminal possession of a controlled substance in the third degree (§ 220.16[1] ), and perjury in the first degree (§ 210.15). We reject defendant's contention that County Court erred in permitting the People to present evidence concerning his prior uncharged drug sales. That evidence was admissible to establish defendant's intent to sell drugs, a necessary element of each of the controlled substance charges (see People v. Laws, 27 A.D.3d 1116, 1117, 812 N.Y.S.2d 200, lv. denied 7 N.Y.3d 758, 819 N.Y.S.2d 883, 853 N.E.2d 254 ). In addition, the evidence of those uncharged crimes was admissible to establish the perjury charge (see People v. De Vivo, 282 A.D.2d 770, 771, 726 N.Y.S.2d 145, lv. denied 96 N.Y.2d 900, 730 N.Y.S.2d 798, 756 N.E.2d 86 ). Moreover, the court properly concluded that the probative value of the evidence outweighed its prejudicial effect (see People v. Carson, 4 A.D.3d 805, 806, 771 N.Y.S.2d 775, lv. denied 2 N.Y.3d 797, 781 N.Y.S.2d 296, 814 N.E.2d 468 ), and it gave an appropriate limiting instruction (see People v. Rogers, 103 A.D.3d 1150, 1152–1153, 958 N.Y.S.2d 835, lv. denied 21 N.Y.3d 946, 968 N.Y.S.2d 8, 990 N.E.2d 142 ).
Defendant's contention “that he was denied a fair trial based upon prosecutorial misconduct is unpreserved for our review inasmuch as defendant did not object to any of the alleged instances of misconduct” ( People v. Paul, 78 A.D.3d 1684, 1684, 911 N.Y.S.2d 757, lv. denied 16 N.Y.3d 834, 921 N.Y.S.2d 199, 946 N.E.2d 187 ; see CPL 470.05[2] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). We reject defendant's contention that the verdict finding him guilty of the controlled substance offenses is against the weight of the evidence. Viewing the evidence in light of the elements of those crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.