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

464
KA 13-00523
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES O. RICHARDSON, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), 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 (Joseph W.
Latham, J.), rendered September 26, 2012. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the third degree (two counts), criminal sale of a
controlled substance in the third degree, criminal nuisance in the
first degree and criminal possession of a controlled substance in the
fifth degree.

     It is hereby ORDERED that said appeal from the judgment insofar
as it imposed sentence on the conviction of criminal sale of a
controlled substance in the third degree and two counts of criminal
possession of a controlled substance in the third degree is
unanimously dismissed and the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of two counts of criminal possession of a
controlled substance in the third degree (Penal Law § 220.16 [1]) and
one count each of criminal sale of a controlled substance in the third
degree (§ 220.39 [1]), criminal nuisance in the first degree (§
240.46) and criminal possession of a controlled substance in the fifth
degree (§ 220.06 [5]). Defendant failed to preserve for our review
his contention that County Court did not make an adequate finding of
necessity for the use of a stun belt to restrain him during the trial
(see People v Schrock, 108 AD3d 1221, 1225-1226, lv denied 22 NY3d
998, reconsideration denied 23 NY3d 1025; see also People v Cooke, 24
NY3d 1196, 1197). We decline to exercise our power to review that
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]). Contrary to defendant’s contention, the
evidence, viewed in the light most favorable to the People (see People
v Contes, 60 NY2d 620, 621), is legally sufficient to support his
conviction of criminal nuisance in the first degree.
                                 -2-                           464
                                                         KA 13-00523

     Defendant failed to preserve for our review his challenge to the
legal sufficiency of the evidence supporting his conviction of the
remaining counts of the indictment, “inasmuch as his motion for a
trial order of dismissal was not specifically directed at the same
alleged shortcoming in the evidence raised on appeal” with respect to
those counts (People v Brown, 96 AD3d 1561, 1562, lv denied 19 NY3d
1024 [internal quotation marks omitted]). 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 conclude that the verdict is not
against the weight of the evidence (see generally People v Bleakley,
69 NY2d 490, 495).

     Defendant failed to preserve for our review his contentions that
he was denied a fair trial by prosecutorial misconduct (see CPL 470.05
[2]; People v James, 114 AD3d 1202, 1206-1207, lv denied 22 NY3d
1199), that the court erred in ordering him to pay restitution (see
People v Lewis, 89 AD3d 1485, 1486), and that, in determining the
sentence of incarceration, the court penalized him for exercising his
right to a jury trial (see People v Stubinger, 87 AD3d 1316, 1317, lv
denied 18 NY3d 862). 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, the sentences imposed on the conviction
of criminal nuisance in the first degree and criminal possession of a
controlled substance in the fifth degree are not unduly harsh or
severe. In light of defendant’s resentencing on the conviction of
criminal possession of a controlled substance in the third degree and
criminal sale of a controlled substance in the third degree, we do not
consider his challenge to the severity of the original sentences
imposed on those counts, and we dismiss the appeal from the judgment
to that extent (see People v Snagg, 35 AD3d 1287, 1289, lv denied 8
NY3d 950; People v Haywood, 203 AD2d 966, 966, lv denied 83 NY2d 967).




Entered:   May 1, 2015                         Frances E. Cafarell
                                               Clerk of the Court
