People v. Shell

Appeal by the defendant from a judgment of the County Court, Dutchess County (Marlow, J.), dated June 4, 1996, convicting him of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing as sentence an indeterminate term of 12V2 to 25 years imprisonment for each conviction, with the terms of imprisonment imposed for the convictions of criminal sale of a controlled substance in the third degree under the first count of the indictment and criminal possession of a controlled substance under the second count of the indictment to run consecutively to the terms of imprisonment imposed on the convictions of criminal sale of a controlled substance in the third degree under the third count of the indictment and criminal possession of a controlled substance under the fourth count of the indictment, and to otherwise run concurrently to each other.

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed from indeterminate terms of 12V2 to 25 years imprisonment to indeterminate terms of 10 to 20 years imprisonment, to run concurrently with each other; as so modified, the judgment is affirmed.

The defendant’s contention that the evidence was insufficient to prove his guilt beyond a reasonable doubt is unpreserved for appellate review (see, CPL 470.05 [2]; People v Gray, 86 NY2d 10; People v Udzinski, 146 AD2d 245). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt of the crimes charged beyond a reasonable doubt (see, People v Reed, 256 AD2d 365). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

However, the sentence was excessive to the extent indicated,

The defendant’s remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit. Ritter, J. P., Santucci, Florio and H. Miller, JJ., concur.