        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

110
KA 11-02474
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

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


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, MULDOON & GETZ, ROCHESTER
(GARY MULDOON OF COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Ontario County Court (Thomas M. Van
Strydonck, J.), rendered July 27, 2011. The judgment convicted
defendant, after a nonjury trial, of criminal possession of a
controlled substance in the third degree.

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

     Memorandum: Defendant appeals from a judgment convicting him,
following a nonjury trial, of criminal possession of a controlled
substance in the third degree (Penal Law § 220.16 [1]). Contrary to
defendant’s contention, he was not denied his constitutional right to
proceed pro se. Defendant’s request to proceed pro se “was made in
the context of a claim expressing his dissatisfaction with his
attorney and was not unequivocal” (People v Alexander, 109 AD3d 1083,
1084; see People v Gillian, 8 NY3d 85, 88; People v Caswell, 56 AD3d
1300, 1301-1302, lv denied 11 NY3d 923). We note in any event that
defendant thereafter “abandoned his request to proceed pro se and,
instead, requested the assignment of new counsel” (People v Grippo,
124 AD2d 985, 986, lv denied 69 NY2d 881; see Gillian, 8 NY3d at 88;
Alexander, 109 AD3d at 1084; People v Mercer, 66 AD3d 1368, 1370, lv
denied 13 NY3d 940).

     Defendant’s challenge to the legal sufficiency of the evidence is
unpreserved for our review inasmuch as he failed to move for a trial
order of dismissal at the close of the People’s case (see People v
Jamieson, 88 AD3d 1298, 1298; People v Batjer, 77 AD3d 1279, 1279, lv
denied 77 NY3d 951; see generally CPL 470.05 [2]). In any event, we
conclude that the evidence is legally sufficient to establish
defendant’s intent to sell the narcotic drugs in his possession (see
People v Alverson, 79 AD3d 1787, 1788; see generally People v
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                                                            KA 11-02474

Bleakley, 69 NY2d 490, 495). Viewing the evidence in light of the
elements of the crime in this nonjury trial (see People v Danielson, 9
NY3d 342, 349), we conclude that the verdict is not against the weight
of the evidence (see generally Bleakley, 69 NY2d at 495). Defendant’s
contention that a police witness lacked sufficient experience to
testify as an expert with respect to defendant’s intent to sell is
unpreserved for our review inasmuch as he failed to object to that
testimony (see People v Snyder, 100 AD3d 1367, 1369, lv denied 21 NY3d
1010; People v Hamilton, 96 AD3d 1518, 1519, lv denied 19 NY3d 997;
see also People v Scully, 61 AD3d 1364, 1365, affd 14 NY3d 861), 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]).

     Finally, the sentence is not unduly harsh or severe.




Entered:   February 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
