People v. Dillon

Appellate Division of the Supreme Court of New York

People v. Dillon

38 A.D.3d 1211, 834 N.Y.S.2d 890

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 16, 2007

StatusPublished

Cited by5 cases

This text of 38 A.D.3d 1211 (People v. Dillon) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Dillon, 38 A.D.3d 1211, 834 N.Y.S.2d 890 (N.Y. Ct. App. 2007).

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Opinion

Appeal from a judgment of the Yates County Court (Dennis F. Bender, J.), rendered November 10, 2005. The judgment convicted defendant, upon a jury verdict, of criminal sale of a controlled substance in the third degree (two counts) and criminal sale of a controlled substance in the fourth degree (four counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence imposed on each count of criminal sale of a controlled substance in the third degree to an indeterminate term of incarceration of 4 to 12 years and as modified the judgment is affirmed.

Memorandum:

Defendant appeals from a judgment convicting her, upon a jury verdict, of two counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), and four counts of criminal sale of a controlled substance in the fourth degree (§ 220.34 [1]). Contrary to the contention of defendant, she was not denied effective assistance of counsel (see generally People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]). Defendant failed to preserve for our review her further contention that she was denied a fair trial based on prosecutorial misconduct on summation (see CPL 470.05 [2]), and 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 further contention, we conclude that County Court did not err in refusing to suppress a book concerning prescription drugs found in [1212]*1212defendant’s automobile when it was impounded and its contents were inventoried. The record establishes that there was a sufficient basis to conclude that defendant’s automobile was used in the commission of a crime (see People v White, 262 AD2d 122 [1999], lv denied 93 NY2d 1029 [1999]).

We agree with defendant, however, that the sentence is unduly harsh and severe. Thus, as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]), we modify the judgment by reducing the sentence imposed on each count of criminal sale of a controlled substance in the third degree to an indeterminate term of incarceration of 4 to 12 years. Present— Hurlbutt, J.P, Martoche, Centra, Fahey and Green, JJ.

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Appeal from a judgment of the Yates County Court (Dennis F. Bender, J.), rendered November 10, 2005. The judgment convicted defendant, upon a jury verdict, of criminal sale of a controlled substance in the third degree (two counts) and criminal sale of a controlled substance in the fourth degree (four counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence imposed on each count of criminal sale of a controlled substance in the third degree to an indeterminate term of incarceration of 4 to 12 years and as modified the judgment is affirmed.

Memorandum:

Defendant appeals from a judgment convicting her, upon a jury verdict, of two counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), and four counts of criminal sale of a controlled substance in the fourth degree (§ 220.34 [1]). Contrary to the contention of defendant, she was not denied effective assistance of counsel (see generally People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]). Defendant failed to preserve for our review her further contention that she was denied a fair trial based on prosecutorial misconduct on summation (see CPL 470.05 [2]), and 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 further contention, we conclude that County Court did not err in refusing to suppress a book concerning prescription drugs found in [1212]*1212defendant’s automobile when it was impounded and its contents were inventoried. The record establishes that there was a sufficient basis to conclude that defendant’s automobile was used in the commission of a crime (see People v White, 262 AD2d 122 [1999], lv denied 93 NY2d 1029 [1999]).

We agree with defendant, however, that the sentence is unduly harsh and severe. Thus, as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]), we modify the judgment by reducing the sentence imposed on each count of criminal sale of a controlled substance in the third degree to an indeterminate term of incarceration of 4 to 12 years. Present— Hurlbutt, J.P, Martoche, Centra, Fahey and Green, JJ.

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38 A.D.3d 1211, 834 N.Y.S.2d 890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dillon-nyappdiv-2007.

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