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

253
KA 06-01240
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRANDY ALEXANDER, DEFENDANT-APPELLANT.


KIMBERLY J. CZAPRANSKI, INTERIM CONFLICT DEFENDER, ROCHESTER (JOSEPH
D. WALDORF OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ERIN TUBBS OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered February 22, 2006. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the third degree, criminal possession of a controlled
substance in the seventh degree, and criminally using drug
paraphernalia in the second degree (two counts).

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

     Memorandum: Defendant appeals from a judgment convicting her
upon a jury verdict of criminal possession of a controlled substance
in the third degree (Penal Law § 220.16 [12]), criminal possession of
a controlled substance in the seventh degree (§ 220.03) and two counts
of criminally using drug paraphernalia in the second degree (§ 220.50
[2], [3]). Defendant contends that County Court erred in designating
the second-drawn juror as foreperson after the original foreperson
asked to be relieved of that responsibility, and that preservation of
her contention is not required because the court thereby committed a
mode of proceedings error. Contrary to defendant’s contention, such a
designation, even if erroneous, would not constitute a mode of
proceedings error (see People v Marchese, 261 AD2d 104, 104, lv denied
93 NY2d 1022; see generally People v Agramonte, 87 NY2d 765, 769-770).
In any event, defendant’s contention that the court erred in
designating the second-drawn juror as foreperson is without merit (see
People v Burgess, 280 AD2d 264, 265, lv denied 96 NY2d 798). Viewing
the evidence, the law and the circumstances of this case, in totality
and at the time of representation, we further conclude that defendant
received meaningful representation (see generally People v Baldi, 54
NY2d 137, 147).

     Contrary to the further contention of defendant, the court
                                 -2-                          253
                                                        KA 06-01240

properly denied her severance motion. Defendant failed to preserve
for our review her contention that the court erred in denying her
motion to sever the counts against defendant and her codefendant,
which were joined in a single indictment (see CPL 470.05 [2]; cf.
People v Chestnut, 19 NY3d 606, 611 n 2). In any event, we conclude
that her contention lacks merit (see People v Boyd, 272 AD2d 898, 898,
lv denied 95 NY2d 850; see also CPL 40.10 [2]; 200.40 [1]). We also
reject the contention of defendant that the court abused its
discretion in denying her motion to sever her trial from that of her
codefendant (see People v Clark, 66 AD3d 1489, 1489-1490, lv denied 13
NY3d 906).




Entered:   March 15, 2013                      Frances E. Cafarell
                                               Clerk of the Court
