| People v Brock |
| 2013 NY Slip Op 04046 [107 AD3d 1025] |
| June 6, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JamelB. Brock, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Chemung County(Hayden, J.), rendered October 30, 2009, upon a verdict convicting defendant of thecrimes of criminal possession of a controlled substance in the third degree and resistingarrest.
In October 2008, defendant left a residence in the Town of Southport, ChemungCounty that was under surveillance for suspected drug activity. As defendant's vehiclepassed by, two members of the surveillance team observed that the windows of the carappeared to be tinted in violation of Vehicle and Traffic Law § 375 (12-a) (b).This information was relayed to a patrol officer, and defendant thereafter was pulled overfor an equipment violation in the City of Elmira, Chemung County. As the officerapproached the vehicle, defendant rolled down the window, at which time the officernoticed a "very strong odor of marihuana" emanating from the vehicle. When the officerasked defendant whether he had any marihuana in his possession, defendant becameagitated and fled the scene. A chase ensued and, following a struggle with various lawenforcement officials on the lawn of his residence, defendant was handcuffed andtransported to the local police station. At that time, a small digital scale and a quantity ofwhat appeared to be crack cocaine were observed on the ground where the struggle hadoccurred.
As a result of this incident, defendant was indicted and charged with criminalpossession of a controlled substance in the third degree and resisting arrest. Following ajury trial, defendant was convicted on both counts and thereafter was sentenced, as asecond felony [*2]offender, to an aggregate prison termof 12 years followed by three years of postrelease supervision. This appeal ensued.
Defendant initially contends that County Court erred in failing to suppress thephysical evidence seized following the traffic stop. We disagree. Probable cause tobelieve that an individual has violated a provision of the Vehicle and Traffic Law"provides an objectively reasonable basis for the police to stop a vehicle" (People v Pealer, 20 NY3d447, 457 n 2 [2013]; seePeople v McLean, 99 AD3d 1111, 1111-1112 [2012], lv denied 20NY3d 1013 [2013]; People vGarcia, 30 AD3d 833, 834 [2006]). Here, the officer in question was justified instopping defendant's vehicle in the first instance based upon what he believed to beexcessively tinted windows (see Vehicle and Traffic Law § 375 [12-a] [b];People v Fagan, 98 AD3d1270, 1271 [2012], lv denied 20 NY3d 1061 [2013]; People v Hawkins, 45 AD3d989, 991 [2007], lv denied 9 NY3d 1034 [2008]; People v Daguilar,158 AD2d 857, 858 [1990]; People v Osborne, 158 AD2d 740, 741 [1990],lv denied 75 NY2d 968 [1990]).[FN1]Upon approaching defendant's vehicle, the officer detected a "very strong odor ofmarihuana" and, thereafter, defendant falsely indicated that he was on his way home fromschool, thus providing the officer with "a founded suspicion that criminality [was] afoot[and] permitting questions that focused on defendant's possible wrongdoing" (People v Kindred, 100 AD3d1038, 1039 [2012] [internal quotation marks and citation omitted], lv denied21 NY3d 913 [2013]; seePeople v Wallgren, 94 AD3d 1339, 1341 [2012]). In response to suchquestioning, defendant fled the scene, and the cocaine and scales ultimately recoveredwere found on the ground after defendant was subdued in the yard of his residence.Under these circumstances, we discern no basis upon which to suppress the foregoingevidence.
Nor do we find merit to defendant's pro se claim that the People failed to establish aproper chain of custody. Simply put, the detailed testimony offered by the relevantforensic scientist, evidence custodian and law enforcement officials regarding thecollection, securing and testing of the cocaine at issue "provide[s] 'the necessaryreasonable assurances of the identity and unchanged condition of the drugs toauthenticate that evidence' " (People v Green, 90 AD3d 1151, 1154 [2011], lvdenied 18 NY3d 994 [2012], quoting People v Danford, 88 AD3d 1064, 1067 [2011], lvdenied 18 NY3d 882 [2012]). Contrary to defendant's assertion, the fact that thedrugs apparently were not photographed does not create a gap in the chain of custodyand, even assuming that a discrepancy existed with respect to the manner in which thecocaine was packaged, any defect in this regard would affect the weight to be accordedsuch evidence, not its admissibility (cf. People v Danford, 88 AD3d at 1067).
Defendant next contends that County Court erred in failing to conduct a sufficientinquiry to ascertain whether a particular juror was grossly unqualified. The recordreveals, however, that defendant neither voiced any objection to the inquiry undertakenby the trial court nor moved to disqualify the juror in question. Accordingly, this issue isnot preserved for our [*3]review (see People v Viera, 75 AD3d926, 927 [2010]; People vCecunjanin, 67 AD3d 1072, 1077 [2009], mod on other grounds 16NY3d 488 [2011]; cf. People vBlond, 96 AD3d 1149, 1152-1153 [2012], lv denied 19 NY3d 1101[2012]). In any event, the record fails to disclose any basis upon which to find that thejuror in question "possesse[d] a state of mind which would [have] prevent[ed] therendering of an impartial verdict" (People v Buford, 69 NY2d 290, 298 [1987][internal quotation marks and citation omitted]), which is the standard for rendering ajuror grossly unqualified to serve (see People v Guy, 93 AD3d 877, 877-878 [2012], lvdenied 19 NY3d 961 [2012]).
Finally, we reject defendant's assertion that he was denied the effective assistance ofcounsel—a claim premised in large measure upon trial counsel's alleged failure toadequately confer with defendant and her purported unwillingness to pursue whatdefendant viewed as viable trial strategies.[FN2]Initially, to the extent that defendant contends that counsel failed to sufficiently conferwith and adequately explain the underlying motion practice or trial strategy to him, thisclaim implicates matters outside the record and, as such, is more properly considered inthe context of a CPL article 440 motion (see People v McCray, 96 AD3d 1160, 1161 [2012], lvdenied 19 NY3d 1104 [2012]). As to the balance of defendant's claim, the case lawmakes clear that "[s]o long as the evidence, the law, and the circumstances of a particularcase, viewed in totality and as of the time of the representation, reveal that the attorneyprovided meaningful representation, the defendant will be deemed to have received theeffective assistance of counsel" (People v Bahr, 96 AD3d 1165, 1166 [2012] [internalquotation marks and citations omitted], lv denied 19 NY3d 1024 [2012]; see People v Jordan, 99 AD3d1109, 1110-1111 [2012], lv denied 20 NY3d 1012 [2013]).
Despite defendant's protestations to the contrary, the record reveals that trial counselmade appropriate motions and objections, presented cogent opening and closingstatements, effectively cross-examined the People's witnesses and advanced a plausibledefense, thereby establishing that defendant received meaningful assistance (see People v O'Daniel, 105AD3d 1144, 1147 [2013]). Although defendant and trial counsel apparentlydisagreed as to what might constitute a viable defense, defendant has failed to establishthe absence of a strategic or otherwise legitimate explanation for counsel's purportedlydeficient performance (seePeople v Izzo, 104 AD3d 964, 967 [2013]). Further, "[t]here can be no denial ofeffective assistance of trial counsel arising from counsel's failure to make a motion orargument that has little or no chance of success" (People v Bahr, 96 AD3d at1167 [internal quotation marks and citations omitted]). Having found no merit todefendant's arguments with respect to the seizure of or failure to photograph the drugs inquestion, the sufficiency of the corresponding chain of custody evidence and the assertedjuror disqualification (see supra), neither trial counsel nor suppression counselcan be faulted for the manner in which these issues were addressed. In short, based uponour review of the record as a whole, we are satisfied that defendant received meaningfulrepresentation—both at his trial and at the underlying suppression hearing.Defendant's remaining contentions, including his assertion that the sentence imposed isharsh and excessive, have been examined and found to be lacking in merit.
Stein, J.P., Spain and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Although the officeralso was aware of defendant's potential involvement in the underlying drug surveillance,the officer's actual motive or subjective intent for effectuating the stop was irrelevant (see People v Wallgren, 94AD3d 1339, 1340-1341 [2012]; People v Hawkins, 45 AD3d at 991;People v Garcia, 30 AD3d at 834; People v Brooks, 23 AD3d 847, 849 [2005], lvdenied 6 NY3d 810 [2006]).
Footnote 2: Defendant alsocontends that he received ineffective assistance of counsel at the underlying suppressionhearing, at which time he was represented by another public defender.