TUFF, JR., LEROY, PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1331
KA 09-01810
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
LEROY TUFF, JR., DEFENDANT-APPELLANT.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (MARK C. CURLEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.
LEROY TUFF, JR., DEFENDANT-APPELLANT PRO SE.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered August 7, 2009. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the first degree, criminal sale of a controlled substance
in the third degree, criminal possession of a controlled substance in
the third degree (two counts), criminally using drug paraphernalia in
the second degree (two counts), unlawful possession of marihuana and
intimidating a victim or witness in the third degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, following
a jury trial, of various drug-related crimes as well as the crime of
intimidating a victim or witness in the third degree (Penal Law §
215.15 [1]), defendant contends, inter alia, that the People failed to
provide full disclosure of the confidential informant’s motivation for
becoming a confidential informant and testifying at trial. That
contention is not preserved for our review because defendant did not
object to any of the informant’s direct testimony regarding his
motivation for becoming a confidential informant (see CPL 470.05 [2]).
In any event, the record establishes that defense counsel both cross-
examined and re-cross-examined the informant with respect to that
contention at trial. Contrary to defendant’s further contentions,
County Court did not err in consolidating the indictments for trial
(see People v Rogers, 245 AD2d 1041), nor did the court violate
defendant’s right to be present at sidebar conferences inasmuch as his
absence at the sidebar conferences did not affect his ability to
defend himself (see People v Antommarchi, 80 NY2d 247, 250, rearg
denied 81 NY2d 759; People v Velasco, 77 NY2d 469, 472). We reject
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KA 09-01810
defendant’s contention that the sentence is illegal (see generally
Penal Law § 70.25 [2]). Finally, defendant failed to preserve for our
review his contention that the court erred in preventing him from
calling a witness who had been granted use immunity, and he likewise
failed to preserve his remaining contentions for our review (see CPL
470.05 [2]). We decline to exercise our power to review those
contentions as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).
Entered: December 30, 2011 Frances E. Cafarell
Clerk of the Court