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

771
KA 13-02207
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KEITH A. SMITH, DEFENDANT-APPELLANT.


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

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (KRISTYNA S. MILLS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered October 18, 2013. The judgment convicted
defendant, upon a jury verdict, of criminal sale of a controlled
substance in the third degree (two counts), criminal possession of a
controlled substance in the third degree (four counts) and perjury in
the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him of
two counts of criminal sale of a controlled substance in the third
degree (Penal Law § 220.39 [1]), four counts of criminal possession of
a controlled substance in the third degree (§ 220.16 [1]), and perjury
in the first degree (§ 210.15). We reject defendant’s contention that
County Court erred in permitting the People to present evidence
concerning his prior uncharged drug sales. That evidence was
admissible to establish defendant’s intent to sell drugs, a necessary
element of each of the controlled substance charges (see People v
Laws, 27 AD3d 1116, 1117, lv denied 7 NY3d 758). In addition, the
evidence of those uncharged crimes was admissible to establish the
perjury charge (see People v De Vivo, 282 AD2d 770, 771, lv denied 96
NY2d 900). Moreover, the court properly concluded that the probative
value of the evidence outweighed its prejudicial effect (see People v
Carson, 4 AD3d 805, 806, lv denied 2 NY3d 797), and it gave an
appropriate limiting instruction (see People v Rogers, 103 AD3d 1150,
1152-1153, lv denied 21 NY3d 946).

     Defendant’s contention “that he was denied a fair trial based
upon prosecutorial misconduct is unpreserved for our review inasmuch
as defendant did not object to any of the alleged instances of
misconduct” (People v Paul, 78 AD3d 1684, 1684, lv denied 16 NY3d 834;
see CPL 470.05 [2]). We decline to exercise our power to review that
                                 -2-                          771
                                                        KA 13-02207

contention as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]). We reject defendant’s contention that the
verdict finding him guilty of the controlled substance offenses is
against the weight of the evidence. Viewing the evidence in light of
the elements of those 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). Finally, the sentence is not unduly harsh or
severe.




Entered:   June 12, 2015                       Frances E. Cafarell
                                               Clerk of the Court
