People v. Walker

19 A.D.3d 208, 798 N.Y.S.2d 398

Opinion

Judgment, Supreme Court, New York County (William A. Wetzel, J), rendered June 16, 2003, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4V2 to 9 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Defendant’s challenges to the sufficiency and weight of the evidence are based on an agency theory that he did not raise at trial (see People v Wright, 288 AD2d 28 [2001], lv denied 97 NY2d 735 [2002]). Furthermore, defendant’s theory rests on assumptions about the jury’s thought processes in reaching a mixed verdict (see People v Rayam, 94 NY2d 557 [2000]). In any event, we find that defendant’s agency theory is not supported by any evidence, including his own testimony (see People v Starling, 85 NY2d 509, 515-516 [1995]).

The record establishes that defendant received effective assistance of counsel (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]).

Defendant’s sentence, which was the statutory minimum, did not constitute unconstitutional cruel and unusual punishment, particularly in light of defendant’s extensive criminal record (see People v Thompson, 83 NY2d 477, 480 [1994]; People v Broadie, 37 NY2d 100 [1975], cert denied 423 US 950 [1975]). We perceive no basis for reducing the defendant’s conviction to a lesser offense. Concur—Tom, J.P., Friedman, Gonzalez and Catterson, JJ.