| People v Elmore |
| 2008 NY Slip Op 02613 [49 AD3d 778] |
| March 18, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v BarryElmore, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Jill Gross-Marks of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lewis, J.),rendered September 14, 2005, convicting him of grand larceny in the fourth degree, criminalmischief in the fourth degree, possession of burglar's tools, and jostling, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish that he actedin concert with his codefendants is without merit. Viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), there existed a"valid line of reasoning and permissible inferences [which] could lead a rational person to theconclusion reached by the fact finder on the basis of the evidence at trial" (People vHines, 97 NY2d 56, 62 [2001] [internal quotation marks omitted]; see People vCoulter, 240 AD2d 756 [1997]; People v Roldan, 211 AD2d 366 [1995], affd88 NY2d 826 [1996]; People v Slack, 163 AD2d 130, 130-131 [1990]). Moreover, uponthe exercise of our factual review power (see CPL 470.15 [5]), we find that the verdict ofguilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contention that he was denied the effective assistance of counsel is withoutmerit. A review of the circumstances in totality reveals that the defendant was affordedmeaningful representation (see People v Henry, 95 NY2d 563, 565 [2000]; People vBaldi, 54 NY2d 137, 147 [1981]; People [*2]v Daniels, 35 AD3d495, 496 [2006]; People v Hill, 163 AD2d 813, 814 [1990]; People vBlanco, 162 AD2d 540, 543 [1990]). Contrary to the defendant's argument, defense counselsought, albeit unsuccessfully, to exclude from evidence the razor that was recovered from thedefendant at the time of his arrest, three days after the alleged crime, as inadmissible evidence ofan uncharged crime pursuant to People v Ventimiglia (52 NY2d 350 [1981]). Contrary tothe defendant's further contention, the failure to make a meritless suppression motion pursuant toMapp v Ohio (367 US 643 [1961]) does not constitute the ineffective assistance ofcounsel (see People v Caban, 5NY3d 143, 152-153 [2005]; Peoplev Daniels, 35 AD3d 495, 496 [2006]). Since the property in question was recoveredfrom the defendant when he was arrested for a separate crime, as to which the defendant pleadedguilty, a motion to suppress the physical evidence on the ground that the defendant had beenarrested at that time without probable cause would have been unsuccessful (see People vRivera, 71 NY2d 705, 709 [1988]). Spolzino, J.P., Angiolillo, Balkin and Leventhal, JJ.,concur.