         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
131
KA 11-00929
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GREGORY T. JACKSON, DEFENDANT-APPELLANT.


MULDOON & GETZ, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR
DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered April 20, 2011. The judgment convicted
defendant, upon a jury verdict, of criminal sale 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]), defendant contends that he was denied
effective assistance of counsel. We reject that contention.
Defendant has failed to demonstrate “the absence of strategic or other
legitimate explanations” for the various allegations of
ineffectiveness (People v Rivera, 71 NY2d 705, 709). Further, viewing
the evidence, the law and the circumstances of this case, in totality
and as of the time of the representation, we conclude that defendant
received meaningful representation (see generally People v Baldi, 54
NY2d 137, 147).

     Defendant failed to preserve for our review his further
contention that County Court violated CPL 310.10 by questioning
individual jurors concerning their contact with defendant without
explicitly instructing the remaining jurors not to deliberate until
all 12 jurors were present (see People v Kelly, 16 NY3d 803, 804), and
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]).
Contrary to defendant’s contention, “there was no mode of proceedings
error dispensing with the preservation requirement because the brief,
momentary separation of the juror[s] from deliberations was not the
type of violation contemplated by the ‘continuously kept together’
                                 -2-                          131
                                                        KA 11-00929

language of CPL 310.10” (Kelly, 16 NY3d at 804).




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