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

80
KA 08-01360
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SHARIFF JONES, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SARAH M. KELLY,
JAMES P. MAXWELL, OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered February 29, 2008. 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 following a
jury trial 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 evidence is not legally sufficient to support the
conviction. Defendant failed to move for a trial order of dismissal
on the ground that the evidence concerning his mental culpability and
intent was legally insufficient, and thus he failed to preserve that
part of his contention for our review (see People v Hawkins, 11 NY3d
484, 492; People v Gray, 86 NY2d 10, 19). Although defendant
preserved for our review his contention concerning the issue of
identity, we conclude that the evidence with respect thereto, viewed
in the light most favorable to the People (see People v Contes, 60
NY2d 620, 621), is legally sufficient to support the conviction (see
generally People v Bleakley, 69 NY2d 490, 495).

     To the extent that defendant contends that hearsay was improperly
admitted in evidence at trial and that such hearsay bolstered the
People’s case, that contention is not preserved for our review with
respect to the testimony of the two police detectives who were not
undercover (see People v Thomas, 85 AD3d 1572, 1573; People v Velsor,
73 AD3d 819, lv denied 15 NY3d 810). We decline to exercise our power
to review that contention as a matter of discretion in the interest of
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                                                         KA 08-01360

justice (see CPL 470.15 [6] [a]). Although defendant preserved for
our review his contention that the testimony of one of the undercover
detectives constituted hearsay, Supreme Court did not abuse its
discretion in determining that the testimony in question was not
offered for its truth, and we will not disturb that determination (see
generally People v Carroll, 95 NY2d 375, 385). Defendant did not
preserve for our review his contention that the testimony of that
undercover detective constituted improper bolstering (see Thomas, 85
AD3d at 1573). Defendant also failed to preserve for our review his
contention that he was denied his right of confrontation (see People v
Kello, 96 NY2d 740, 743-744), as well as his contention that the court
erred in permitting the prosecutor to make improper statements during
summation (see People v Kithcart, 85 AD3d 1558, 1559-1560, lv denied
17 NY3d 818). We decline to exercise our power to review those
contentions as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).

      Finally, 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 further contention that the verdict is
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495).




Entered:   February 10, 2012                   Frances E. Cafarell
                                               Clerk of the Court
