| People v Carter |
| 2011 NY Slip Op 08771 [89 AD3d 1101] |
| November 29, 2011 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| The People of the State of New York, Respondent, v Leroy Carter III, Appellant. |
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Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel), for
respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Gazzillo, J.), rendered December 15, 2008, convicting him of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review (see People v Hawkins, 11 NY3d 484 [2008]) and, in any event, is without merit. Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt of the crimes charged beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Contrary to the defendant's contention, the People proved that he was not acting as the agent or mere extension of the buyer (see People v Roche, 45 NY2d 78, 82-83 [1978], cert denied 439 US 958 [1978]; People v Matos, 123 AD2d 330, 331 [1986]). The evidence adduced at trial established that the defendant displayed an independent interest in the sale and his behavior "purposefully affected or furthered the sale of the controlled substance" (People v Martinez, 289 AD2d 259, 259 [2001] [internal quotation marks omitted]; see People v Roche, 45 NY2d at 81; People v Torres, 150 AD2d 816, 816 [1989]).
The defendant's contention that the failure of trial counsel to preserve a certain contention for appellate review constituted ineffective assistance of counsel is without merit (see People v Phillips, 84 AD3d 1274, 1274-1275 [2011]; People v Greenlee, 70 AD3d 966, 967 [2010]; People v Taberas, 60 AD3d 791, 793 [2009]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Rivera, J.P., Leventhal, Belen and Roman, JJ., concur.