People v. Cannon

168 A.D.2d 356, 562 N.Y.S.2d 679, 1990 N.Y. App. Div. LEXIS 15481

Opinion

Judgment, Supreme Court, New York County (Harold Rothwax, J.; Peter McQuillan, J.), rendered November 12, 1986, convicting defendant, after a jury trial, of conspiracy in the second degree, criminal sale of a controlled substance in the first degree, criminal possession of a controlled substance in the second degree, criminal sale of a controlled substance in the second degree and criminal possession of a controlled substance in the third degree, and sentencing him to concurrent indeterminate prison terms of from 8 Vs to 25 years on the conspiracy and third degree possession charges, 8 Vs years to life on the second degree possession of and sale charges, and 18 years to life on the first degree sale charge, unanimously affirmed.

Defendant’s convictions arise out of his sales of narcotics with his codefendants, David Richman and Kenneth Jackson, to an undercover officer on several occasions. At trial, during the jury deliberations, Justice Rothwax became ill and Justice McQuillan presided until verdict.

Defendant’s claim as to the "mere presence” charge given at trial is unpreserved for appellate review, and we decline to reach it. Further, while the court’s initial conspiracy charge may have been incorrect, a proper supplemental charge was given, obviating any prejudice to defendant. Nor was defendant prejudiced by the substitution of Justice McQuillan for the then incapacitated Justice Rothwax. (People v Lewis, 71 AD2d 7, 10.)

We have considered defendant’s remaining contentions and find them to be without merit. Concur—Kupferman, J. P., Ross, Rosenberger, Asch and Wallach, JJ.