| People v Dixon |
| 2008 NY Slip Op 03775 [50 AD3d 1519] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Peter A.Dixon, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered September 26, 2006. The judgment convicted defendant, after a nonjury trial, ofcriminal possession of a weapon in the second degree and criminal possession of a weapon in thethird degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him after a nonjury trial of, inter alia,criminal possession of a weapon in the second degree (Penal Law former § 265.03 [2]),defendant contends that the evidence is legally insufficient to support his conviction of thatcrime. Defendant failed to preserve his contention for our review (see People v Gray, 86NY2d 10, 19 [1995]) and, in any event, that contention lacks merit. Viewing the evidence in thelight most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), weconclude that it is legally sufficient, given the statutory presumption set forth in Penal Law§ 265.15 (4), to establish the elements of criminal possession of a weapon in the seconddegree (see People v Willson, 272 AD2d 959 [2000], lv denied 95 NY2d 873[2000]; People v Walcott, 235 AD2d 368, 368-369 [1997], lv denied 90 NY2d898 [1997]; People v Wooten, 149 AD2d 751 [1989], lv denied 74 NY2d 822[1989]). We conclude that defendant's challenges to the grand jury proceeding concern thealleged legal insufficiency of the grand jury evidence, and thus they are "not reviewable upon anappeal from an ensuing judgment of conviction based upon legally sufficient trial evidence"(CPL 210.30 [6]; see People vSmith, 4 NY3d 806, 808 [2005]; People v Boynton, 35 AD3d 875, 876 [2006], lv denied 8NY3d 982 [2007]).
Defendant failed to preserve for our review his contention that he did not knowingly,intelligently and voluntarily waive his right to a jury trial (see People v Reed, 15 AD3d 911 [2005], lv denied 4 NY3d890 [2005]; People v Williams, 5 AD3d 1043, 1044 [2004], lv denied 2 NY3d809 [2004]), as well as his contention that he was denied a fair trial by alleged prosecutorialmisconduct on summation (see People vRicks, 49 AD3d 1265 [2008]; People v Green, 48 AD3d 1245 [2008]). In any event, thosecontentions lack merit. "Defendant waived his right to a jury trial in open court and in writing inaccordance with the requirements of NY Constitution, art I, § 2 and CPL 320.10(2). . . , and the record establishes that defendant's waiver was knowing, voluntaryand intelligent" (People v Wegman,2 AD3d 1333, 1334 [2003], lv denied 2 NY3d 747 [2004]). "[N]o particularcatechism is [*2]required to establish the validity of a jury trialwaiver" (People v Smith, 6 NY3d827, 828 [2006], cert denied 548 US 905 [2006]). Because the factfinder in this trialwas Supreme Court, which " 'is deemed uniquely capable of distinguishing those issues properlypresented to [it] from those not' " (People v Kozlow, 46 AD3d 913, 915 [2007]), we conclude thatthere is no danger that the prosecutor's allegedly improper comments on summation contributedto the verdict.
We reject the further contention of defendant that he was denied his right to effectiveassistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]). "Adefendant is not denied effective assistance of trial counsel merely because counsel does notmake a motion or argument that has little or no chance of success" (People v Stultz, 2 NY3d 277, 287[2004], rearg denied 3 NY3d 702 [2004]), and "a defendant must 'demonstrate theabsence of strategic or other legitimate explanations' for counsel's allegedly deficient conduct"(People v Caban, 5 NY3d 143,152 [2005], quoting People v Rivera, 71 NY2d 705, 709 [1988]). Given the absence ofevidence of defendant's intent to use the handgun unlawfully against another and the People'sreliance on the statutory presumption of intent set forth in Penal Law § 265.15 (4) to provethat element of criminal possession of a weapon in the second degree, we cannot agree withdefendant that defense counsel had no "strategic or other legitimate explanation[ ]" for focusingon the intent element of that crime (Rivera, 71 NY2d at 709). Finally, we reject thecontention of defendant that he was denied his right to a fair trial based on the cumulative effectof the alleged errors at trial. Present—Scudder, P.J., Smith, Centra, Peradotto and Pine, JJ.