People v. Donald

Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered April 5, 2002. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the fourth degree and driving without a seatbelt. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment entered upon a jury verdict convicting him of, inter alia, criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09 [1]). Contrary to the contention of defendant, County Court did not abuse its discretion in denying his motions seeking a mistrial based on alleged misconduct by two police officers who testified for the prosecution (see generally People v Ortiz, 54 NY2d 288, 292 [1981]). Defendant’s further contentions that the court erred in projecting the jury charge on the wall while orally delivering it and in failing to give a cautionary instruction prior to deliberations regarding notes taken by the jurors are not preserved for our review (see CPL 470.05 [2]), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see 470.15 [6] [a]; People v Burlew, 261 AD2d 828 [1999], lv denied 93 NY2d 1015 [1999]). Finally, the contention of defendant that he received ineffective assistance of counsel rests on matters outside the record and thus is not properly before us (see People v Logan, 2 AD3d 1392 [2003]; People v Lopez, 2 AD3d 234 [2003]). Present—Green, J.P, Wisner, Hurlbutt, Kehoe and Lawton, JJ.