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

117
KA 12-00186
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHEYENNE J. RUSSAW, JR., DEFENDANT-APPELLANT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered October 17, 2011. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the fourth degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal possession of a controlled substance
in the fourth degree (Penal Law § 220.09 [1]). Defendant failed to
preserve for our review his contention that County Court committed
several errors in allowing the jurors to take notes and in instructing
the jurors with respect to note-taking, and we decline to exercise our
power to review that contention as a matter of discretion in the
interest of justice (see People v Green, 35 AD3d 1197, 1198, lv
denied 8 NY3d 922; People v Valiente, 309 AD2d 562, 562, lv denied 1
NY3d 602). Contrary to defendant’s further contention, the evidence
is legally sufficient to establish that he constructively possessed
the controlled substance. “Where . . . there is no evidence that
defendant actually possessed the controlled substance, the People must
establish that defendant exercised dominion or control over the
property by a sufficient level of control over the area in which the
contraband [was] found or over the person from whom the contraband
[was] seized” (People v Pichardo, 34 AD3d 1223, 1224, lv denied 8 NY3d
926 [internal quotation marks omitted]; see People v Manini, 79 NY2d
561, 573; see also § 10.00 [8]). Here, we conclude that the evidence,
viewed in the light most favorable to the People (see People v Hines,
97 NY2d 56, 62, rearg denied 97 NY2d 678; People v Williams, 84 NY2d
925, 926), is legally sufficient to establish that defendant
constructively possessed the controlled substance (see generally
People v Bleakley, 69 NY2d 490, 495). Also contrary to defendant’s
                                 -2-                           117
                                                         KA 12-00186

contention, viewing the evidence in light of the elements of the crime
as charged to the jury (see People v Danielson, 9 NY3d 342, 349), the
verdict is not against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495).

     We reject defendant’s further contentions that he was denied
effective assistance of counsel (see generally People v Baldi, 54 NY2d
137, 147), and that the sentence is unduly harsh and severe. Finally,
we have reviewed defendant’s remaining contention and conclude that it
does not require reversal or modification of the judgment of
conviction.




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