         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
69
KA 11-01222
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL WHITE, ALSO KNOWN AS MICHAEL BREWER,
DEFENDANT-APPELLANT.


KATHLEEN P. REARDON, ROCHESTER, FOR DEFENDANT-APPELLANT.

MICHAEL WHITE, DEFENDANT-APPELLANT PRO SE.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Craig J.
Doran, J.), rendered April 11, 2011. The judgment convicted
defendant, upon a jury verdict, of criminal sale of a controlled
substance in the third degree and criminal possession of a controlled
substance in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him, upon a
jury verdict, of criminal sale of a controlled substance in the third
degree (Penal Law § 220.39 [1]) and criminal possession of a
controlled substance in the third degree (§ 220.16 [1]), defendant
contends that the conviction is unsupported by legally sufficient
evidence. Viewing the evidence in the light most favorable to the
People (see People v Contes, 60 NY2d 620, 621), we reject that
contention (see generally People v Bleakley, 69 NY2d 490, 495).
Moreover, viewing the evidence in light of the elements of the crimes
as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s contention that the verdict is against the weight
of the evidence (see generally Bleakley, 69 NY2d at 495). Defendant
next contends that the court acted vindictively in sentencing him
based on his exercise of his right to a jury trial. That contention
is unpreserved for our review (see People v Motzer, 96 AD3d 1635,
1636, lv denied 19 NY3d 1104; People v Stubinger, 87 AD3d 1316, 1317,
lv denied 18 NY3d 862). In any event, the record does not support
defendant’s contention (see Stubinger, 87 AD3d at 1317).

     Defendant’s challenge in his main and pro se supplemental briefs
to the legal sufficiency of the evidence before the grand jury is
                                 -2-                            69
                                                         KA 11-01222

precluded by his conviction upon legally sufficient trial evidence
(see CPL 210.30 [6]; People v Smith, 4 NY3d 806, 808). Furthermore,
the record does not support defendant’s contention that the grand jury
was misled regarding a recorded telephone call, and the indictment
therefore was not subject to dismissal on that ground (see People v
Bean, 66 AD3d 1386, 1386, lv denied 14 NY3d 769). Defendant’s claims
of ineffective assistance of counsel in his main and pro se
supplemental briefs fail “to demonstrate the absence of strategic or
other legitimate explanations” for defense counsel’s alleged
deficiencies (People v Rivera, 71 NY2d 705, 709; see generally People
v Baldi, 54 NY2d 137, 151), and we thus reject them. Additionally,
any isolated errors in defense counsel’s representation were not so
serious that defendant was thereby deprived of a fair trial (see
People v Henry, 95 NY2d 563, 565–566).

     We have reviewed defendant’s remaining contentions in his pro se
supplemental brief and conclude that none warrant reversal or
modification of the judgment.




Entered:   February 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
