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

1205
KA 13-00071
PRESENT: SMITH, J.P., CENTRA, FAHEY, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GRANT A. EASLEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered January 2, 2013. The judgment convicted
defendant, upon a nonjury 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: On appeal from a judgment convicting him upon a
nonjury verdict of criminal possession of a controlled substance in
the fourth degree (Penal Law § 220.09 [1]), defendant contends that
there was no probable cause to compel his pre-indictment DNA buccal
swab (see generally Matter of Abe A., 56 NY2d 288, 291; People v
Smith, 95 AD3d 21, 24). Defendant failed to preserve his contention
for our review inasmuch as he did not move to suppress the DNA
evidence obtained from the buccal swab (see People v Brown, 92 AD3d
1216, 1216, lv denied 18 NY3d 992; People v Clark, 15 AD3d 864, 865,
lv denied 4 NY3d 885), and we decline to exercise our power to review
defendant’s contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]).

     We reject defendant’s further contention that he did not have
actual or constructive possession of the drugs and thus that the
evidence is legally insufficient to support the conviction. Viewing
the evidence in the light most favorable to the People (see generally
People v Contes, 60 NY2d 620, 621), we conclude that there is a valid
line of reasoning and permissible inferences that could lead the trier
of fact to conclude that defendant constructively possessed the
subject drugs (see generally People v Bleakley, 69 NY2d 490, 495).
Furthermore, viewing the evidence in light of the elements of the
crime in this nonjury trial (see People v Danielson, 9 NY3d 342, 349),
we reject defendant’s contention that the verdict is against the
                                 -2-                          1205
                                                         KA 13-00071

weight of the evidence (see generally Bleakley, 69 NY2d at 495).

     Defendant failed to preserve for our review his further
contention that he was deprived of a fair trial by prosecutorial
misconduct on summation (see CPL 470.05 [2]) and, in any event, that
contention is without merit. The allegedly improper comments were
“either a fair response to defense counsel’s summation or fair comment
on the evidence” (People v Santiago, 101 AD3d 1715, 1716, lv denied 21
NY3d 946 [internal quotation marks omitted]; see generally People v
Halm, 81 NY2d 819, 821).

     Finally, defendant’s sentence is not unduly harsh or severe. We
note, however, that the certificate of conviction incorrectly reflects
that defendant was sentenced as a second felony offender, and it
therefore must be amended to reflect that he was sentenced as a second
felony drug offender (see People v Vasavada, 93 AD3d 893, 894, lv
denied 19 NY3d 978; see also People v Afrika, 79 AD3d 1678, 1680, lv
denied 17 NY3d 791).




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
