         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
350
KA 08-01688
PRESENT: SCUDDER, P.J., CENTRA, SCONIERS, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHN P. DEMUS, DEFENDANT-APPELLANT.


CRAIG P. SCHLANGER, SYRACUSE, FOR DEFENDANT-APPELLANT.

DONALD H. DODD, DISTRICT ATTORNEY, OSWEGO (MICHAEL G. CIANFARANO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered April 25, 2008. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the fifth degree and unlawful possession of marihuana.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, criminal possession of a
controlled substance in the fifth degree (Penal Law § 220.06 [5]).
Defendant contends that County Court erred in refusing to suppress
evidence recovered from his person on the ground that the search
warrant for his person and residence was not based upon probable
cause. We reject that contention. The court reviewed, inter alia,
the recording of the sworn testimony of the confidential informant
before City Court, which issued the search warrant, and it properly
relied upon the ability of City Court to assess the credibility of the
confidential informant (see People v Ashley, 2 AD3d 1321, lv denied 4
NY3d 851). We therefore conclude that County Court properly
determined that the testimony of the confidential informant provided
“the veracity or reliability of the source of the information, and . .
. the basis of [his] knowledge” and thus that the search warrant was
based upon probable cause (People v Griminger, 71 NY2d 635, 639).
Defendant further contends that the search warrant was based upon
stale information inasmuch as the affidavit of the police investigator
submitted in support of the warrant application referenced two
controlled buys from defendant that occurred several weeks prior to
that application. That contention is not preserved for our review
(see People v Ming, 35 AD3d 962, 964, lv denied 8 NY3d 883) and, in
any event, it is without merit inasmuch as the testimony of the
confidential informant established that the activity was ongoing (see
People v Coleman, 26 AD3d 773, 774, lv denied 7 NY3d 754).
                                 -2-                           350
                                                         KA 08-01688

     We conclude that the court properly refused to charge the jury on
the lesser included offense of criminal possession of a controlled
substance in the seventh degree (Penal Law § 220.03). The People
presented expert testimony that the cocaine recovered from defendant
weighed in excess of 1,200 milligrams, more than double the weight
requirement for a conviction of criminal possession of a controlled
substance in the fifth degree (see § 220.06 [5]). We therefore
conclude that there is no reasonable view of the evidence that
defendant committed the lesser offense but not the greater (see People
v Bolden, 70 AD3d 1352, lv denied 14 NY3d 838; see generally People v
Davis, 14 NY3d 20, 22-23).

     Contrary to defendant’s contention, he received effective
assistance of counsel. We note that the record establishes that
defendant insisted that defense counsel pursue a defense of
entrapment, based upon the theory that defendant was contacted by the
person who sold him cocaine at the behest of the police, who promptly
seized it from defendant. The record further establishes that defense
counsel unsuccessfully attempted to dissuade defendant from pursuing
that defense. Thus, the record belies defendant’s contention that
defense counsel was ineffective for pursuing that defense. Viewing
the evidence, the law and the circumstances of this case, in totality
and as of the time of the representation, we conclude that defense
counsel provided meaningful representation (see generally People v
Baldi, 54 NY2d 137, 147). Finally, the sentence is not unduly harsh
or severe.




Entered:   March 25, 2011                      Patricia L. Morgan
                                               Clerk of the Court
