People v. Pozo

—Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Colabella, J.), rendered April 26, 1999, convicting him of criminal possession of a controlled substance in the second degree, criminal possession of a controlled substance in the third degree, criminally using drug paraphernalia in the second degree (five counts) and criminal possession of a controlled substance in the seventh degree (five counts), after a nonjury trial, and imposing sentence. Ordered that the judgment is affirmed. The defendant’s contention that the evidence was legally insufficient to support his conviction is unpreserved for appellate review (see, People v Gray, 86 NY2d 10). 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 beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]). The defendant contends that he was denied the effective assistance of counsel because he was advised by his trial counsel not to testify. Since this claim rests on matters dehors the record, it may not be raised on direct appeal from the judgment (see, People v Finch, 279 AD2d 588, lv denied 96 NY2d 800; People v DeLeon, 278 AD2d 425). The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80). O’Brien, J. P., Krausman, Smith and Adams, JJ., concur.