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

268
KA 11-00291
PRESENT: SCUDDER, P.J., LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

JAMES TUCKER, DEFENDANT-APPELLANT.


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

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered October 29, 2010. The appeal was
held by this Court by order entered May 9, 2014, decision was reserved
and the matter was remitted to Supreme Court, Onondaga County, for
further proceedings (117 AD3d 1581).

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

     Memorandum: We previously determined on defendant’s appeal from
a judgment convicting him upon a jury verdict of criminal possession
of a controlled substance in the third degree (Penal Law § 220.16 [1])
and criminal possession of a controlled substance in the fifth degree
(§ 220.06 [5]) that the verdict is not against the weight of the
evidence (People v Tucker, 117 AD3d 1581, 1582). Aside from
determining that issue, we held the case, reserved decision, and
remitted the matter to Supreme Court to conduct a hearing on
defendant’s CPL 330.30 motion to set aside the verdict on the ground
of alleged juror misconduct (id.). On remittal, however, defendant
withdrew his CPL 330.30 motion. Thus, the only issue remaining for us
to address is the severity of the sentence and, contrary to
defendant’s contention, we conclude that the sentence is not unduly
harsh or severe.




Entered:   March 20, 2015                          Frances E. Cafarell
                                                   Clerk of the Court
