FINEOUT, JEFFREY D., PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
729
KA 11-00493
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JEFFREY D. FINEOUT, DEFENDANT-APPELLANT.
WILLIAM G. PIXLEY, ROCHESTER, FOR DEFENDANT-APPELLANT.
CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (HARMONY A. HEALY OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered February 14, 2011. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the third degree, criminal possession of marihuana in the
second degree, criminally using drug paraphernalia in the second
degree (two counts) and perjury in the first degree.
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, inter alia, criminal possession of a
controlled substance in the third degree (Penal Law § 220.16 [1]) and
criminal possession of marihuana in the second degree (§ 221.25). At
the outset, we note our concern with defendant’s contention that the
People withheld disclosure of a cooperation agreement of one of their
witnesses and subsequently countenanced the perjury of that witness
with respect to the existence of the cooperation agreement. That
contention, however, involves “matters outside the record on appeal
and thus may properly be raised by way of a motion pursuant to CPL
article 440” (People v Johnson, 88 AD3d 1293, 1294; see People v
Ellis, 73 AD3d 1433, 1434, lv denied 15 NY3d 851).
Defendant failed to preserve for our review his contention that
County Court erred in admitting certain testimony of several police
detectives with respect to their investigation of this case.
Defendant failed to object to parts of that testimony he now
challenges (see CPL 470.05 [2]), and otherwise made only a general
objection (see People v Mobley, 49 AD3d 1343, 1344, lv denied 11 NY3d
791) or premised his objection on a theory not advanced on appeal (see
generally People v Coapman, 90 AD3d 1681, 1683, lv denied 18 NY3d 956;
People v Smith, 24 AD3d 1253, 1253, lv denied 6 NY3d 818). In any
event, that contention lacks merit inasmuch as the admission of the
testimony did not violate an exclusionary rule (see People v Alvino,
-2- 729
KA 11-00493
71 NY2d 233, 241).
The further contention of defendant that the court erred in
failing to submit to the jury the issue whether a certain witness was
an accomplice as a matter of law is not preserved for our review (see
People v Blume, 92 AD3d 1025, 1027; People v Freeman, 78 AD3d 1505,
1506, lv denied 15 NY3d 952), and we decline to exercise our power to
address it as a matter of discretion in the interest of justice
(see CPL 470.15 [6] [a]). Finally, we reject the contention of
defendant that he was denied a fair trial based on cumulative error
and “the inattention of defense counsel to those errors.” Viewing the
evidence, the law and the circumstances of this case, in totality and
as of the time of the representation, we conclude that defense counsel
provided meaningful representation (see generally People v Baldi, 54
NY2d 137, 147).
Entered: June 15, 2012 Frances E. Cafarell
Clerk of the Court