New York Supreme and/or Appellate Courts Appellate Division, First Department
February 16, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
People v Toxey
Decided on February 16, 2012
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Friedman, J.P., Sweeny, Renwick, DeGrasse, Roman, JJ.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered March 3, 2009, as amended November 12, 2009, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and fifth degrees, criminal possession of marihuana, and three counts of criminal use of drug paraphernalia in the second degree, and sentencing him, as a second felony drug offender, to an aggregate term of 11 years, unanimously affirmed.
Defendant did not preserve his challenge to the court's use of hypothetical examples in its supplemental instructions on constructive possession, and we decline to review it in the interest of justice. As an alternative holding, we find that the court provided a meaningful response to the jury's request for further instructions on the issue (see People v Malloy, 55 NY2d 296 , cert denied 459 US 847 ). The court's use of a set of hypotheticals was balanced and fair to the positions of both sides, and the court did not signal any opinion on the question of guilt or innocence (see People v Leach, 6 AD3d 238, 239 , lv denied 3 NY3d 643 ).
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 16, 2012
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