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

688
KA 08-01006
PRESENT: CENTRA, J.P., LINDLEY, CURRAN, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRANDON L. ROBINSON, DEFENDANT-APPELLANT.


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (David
D. Egan, J.), rendered April 3, 2008. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the third degree, criminally using drug paraphernalia in
the second 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 criminal possession of a controlled substance
in the third degree (Penal Law § 220.16 [1]), criminally using drug
paraphernalia in the second degree (§ 220.50 [2]), and unlawful
possession of marihuana (§ 221.05). On June 28, 2007, officers from
the Rochester Police Department executing a search warrant entered
defendant’s apartment building and observed him standing in the first
floor hallway next to a dryer. When defendant saw the officers, he
ran into his apartment. The officers entered the apartment and found
four men—defendant, Jasman Campbell, and two others—in a 10-foot-by-
10-foot room with cocaine, marihuana, and several dozen small plastic
bags. In addition, the officers found “two clear knotted bags”
containing crack cocaine in the dryer and $460 in small bills on
defendant’s person. The officers found no money on Campbell’s person,
nor did they find a pipe or other equipment in the apartment such as
would facilitate personal use of crack cocaine. Upon his arrest,
defendant made a request of the officers, which the People later
disclosed to defendant in a CPL 710.30 notice: “Please board up or
lock up my apartment. All my possessions are inside.” Defendant,
Campbell, and the two other men were to be tried jointly but, before
that happened, Campbell pleaded guilty to criminal possession of a
controlled substance in the third degree (Penal Law § 220.16 [1]) in
exchange for the minimum sentence. At trial, Campbell testified for
                                 -2-                           688
                                                         KA 08-01006

the defense that he alone possessed and sold the drugs, and that he
did not share the proceeds of the sales with defendant.

     We reject defendant’s contention that Supreme Court erred in
admitting evidence that he possessed $460 in cash at the time of his
arrest. It is well settled that where a defendant is charged with
possession of a controlled substance with intent to sell, evidence of
money found on the defendant’s person at the time of the arrest
constitutes circumstantial evidence of defendant’s intent to sell (see
People v Mosby, 237 AD2d 990, 990, lv denied 90 NY2d 861; see also
People v Lowman, 49 AD3d 1262, 1263, lv denied 10 NY3d 936).

     Viewing the evidence in light of the elements of the crimes and
the violation as charged to the jury (see People v Danielson, 9 NY3d
342, 349), we reject defendant’s further contention that the verdict
is against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495). We note, specifically, that the
determination whether to discredit Campbell’s testimony was within the
province of the jury, and its determination “should not be lightly
disturbed” (People v Harris, 15 AD3d 966, 967, lv denied 4 NY3d 831).

     Finally, defendant failed to preserve for our review his
contention that the court erred in permitting the People to use a
peremptory challenge based on race. Defendant did not object to the
challenge at trial, and he cannot rely on the objection of a
codefendant’s attorney as a basis for preservation (see People v Neil,
213 AD2d 1014, 1014, lv denied 86 NY2d 783). In any event,
defendant’s contention lacks merit. The prospective juror’s distrust
of and past involvement with the law enforcement community constituted
an indisputably race-neutral, nonpretextual reason for the People’s
use of a peremptory challenge (see generally People v Smocum, 99 NY2d
418, 423).




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
