CISSON, JEROME T., PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
749
KA 09-00194
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JEROME T. CISSON, DEFENDANT-APPELLANT.
DONALD R. GERACE, UTICA, FOR DEFENDANT-APPELLANT.
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 November 19, 2008. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the third degree (two counts) and criminal possession of
a controlled substance in the seventh degree (three counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of two counts of criminal possession of a
controlled substance in the third degree (Penal Law § 220.16 [1]) and
three counts of criminal possession of a controlled substance in the
seventh degree (§ 220.03). We reject defendant’s contention that
County Court erred in granting his request to proceed pro se. The
request was unequivocal, and the court engaged in the requisite
searching inquiry to ensure that defendant’s waiver of the right to
counsel was knowing, voluntary and intelligent (see People v Herman,
78 AD3d 1686, 1686-1687, lv denied 16 NY3d 831; People v Clark, 42
AD3d 957, 957-958, lv denied 9 NY3d 960). Indeed, we note that
“[d]efendant’s age, experience, education, prior exposure to the
criminal justice system, firmness in his decision to represent
himself, and performance in representing himself all indicate a
knowing waiver” (People v Edwards, 140 AD2d 959, 960, lv denied 72
NY2d 915, 918, 1043, 1045). In addition, the record establishes that
“[d]efendant had the benefit of standby counsel throughout the
proceedings and proceeded at his own peril, fully aware of the
consequences of his chosen course” (People v Cusamano, 22 AD3d 427,
428, lv denied 6 NY3d 775).
Defendant failed to preserve for our review his contentions that
the court erred in admitting in evidence the expert testimony of an
undercover narcotics officer and in failing to issue a limiting
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KA 09-00194
instruction with respect to that testimony (see CPL 470.05 [2]; People
v Recore, 56 AD3d 1233, 1234-1235, lv denied 12 NY3d 761), and 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]).
Defendant further contends that his conviction of criminal possession
of a controlled substance in the third degree is not supported by
legally sufficient evidence because the People failed to establish his
intent to sell. Defendant also failed to preserve that contention for
our review, inasmuch as he made only a general motion for a trial
order of dismissal at the close of evidence (see People v Salaam, 46
AD3d 1130, 1131, lv denied 10 NY3d 816). Finally, the record does not
support defendant’s contention that he was denied his right to present
a defense, and we conclude that the sentence is not unduly harsh or
severe.
Entered: June 10, 2011 Patricia L. Morgan
Clerk of the Court