People v. Simmons

12 A.D.3d 1077, 784 N.Y.S.2d 766, 2004 N.Y. App. Div. LEXIS 13851

Opinion

Appeal from a judgment of the Erie County Court (Joseph P McCarthy, J.), rendered August 6, 2002. The judgment convicted defendant, after a nonjury trial, of criminal possession of a controlled substance in the seventh degree (two counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a nonjury trial of two counts of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). We reject defendant’s contention that the verdict with respect to the third count of the indictment is against the weight of the evidence. The People elicited uncontroverted testimony that defendant threw a glass smoking pipe to the ground and that forensic tests conducted on the pipe revealed the presence of cocaine. Thus, it cannot be said that the trier of fact failed to give the evidence the weight it should have been accorded (see People v Bleakley, 69 NY2d 490, 495 [1987]). Present—Hurlbutt, J.P., Kehoe, Gorski, Martoche and Hayes, JJ.