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

118
KA 14-00875
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SHAKEYMO A. HODGE, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Peter C.
Bradstreet, J.), rendered March 21, 2014. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the third degree and criminal sale of a controlled
substance in the third degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon a jury verdict of one count each of criminal
possession of a controlled substance in the third degree (Penal Law
§ 220.16 [1]) and criminal sale of a controlled substance in the third
degree (§ 220.39 [1]) and, in appeal No. 2, he appeals from a judgment
convicting him upon his plea of guilty of one count each of those
crimes.

     Defendant contends in appeal No. 1 that County Court failed to
make a sufficient inquiry into juror misconduct when informed that
several jurors had been discussing defendant’s guilt or innocence
before deliberations had begun (see generally People v Buford, 69 NY2d
290, 299). Defendant failed to preserve that contention for our
review, inasmuch as he failed to object to the scope of the court’s
inquiry when the court individually examined all 14 jurors in response
to that allegation (see People v Hicks, 6 NY3d 737, 739; People v
Viera, 75 AD3d 926, 927). 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 contention
that the court abused its discretion in denying his motion for a
mistrial based upon the alleged juror misconduct inasmuch as the court
conducted a probing and tactful inquiry sufficient under Buford (69
NY2d at 299).
                                 -2-                           118
                                                         KA 14-00875

     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 in appeal No. 1 that the verdict
is against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495). The evidence at trial established that
defendant possessed cocaine and sold it to a confidential informant in
a controlled buy transaction. The fact that the only eyewitness to
the sale, i.e., the confidential informant, was cooperating with law
enforcement in exchange for a lenient sentence on charges of driving
while intoxicated does not render his testimony unworthy of belief,
and we accord deference to the credibility determinations of the jury
(see People v Tuszynski, 120 AD3d 1568, 1568-1569, lv denied 25 NY3d
954; see also People v Bausano, 122 AD3d 1341, 1342, lv denied 25 NY3d
1069).

     Finally, we reject defendant’s challenge in each appeal to the
severity of the sentence.




Entered:   February 10, 2017                    Frances E. Cafarell
                                                Clerk of the Court
