| People v Francis |
| 2009 NY Slip Op 04611 [63 AD3d 1644] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Rockel ByronFrancis, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas M. Van Strydonck,J.), rendered June 21, 2005. The judgment convicted defendant, upon a nonjury verdict, ofcriminal possession of a controlled substance in the second degree (two counts) and criminalpossession of a controlled substance in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trialof, inter alia, two counts of criminal possession of a controlled substance in the second degree(Penal Law § 220.18 [1]). We reject the contention of defendant that he was deniedeffective assistance of counsel based on the failure of defense counsel to challenge the searchwarrant for his residence. According to defendant, the issuance of the search warrant was notsupported by probable cause. "There can be no denial of effective assistance of . . .counsel arising from [defense] counsel's failure to 'make a motion or argument that has little orno chance of success' " (People vCaban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3NY3d 702 [2004]). Here, the information in the search warrant application demonstrated anongoing drug operation at defendant's residence, and the application thus "established probablecause to believe that a search of defendant's residence would result in evidence of drug activity"(People v McLaughlin, 269 AD2d 858, 858 [2000], lv denied 95 NY2d 800[2000]; see People v Casolari, 9AD3d 894, 895 [2004], lv denied 3 NY3d 672 [2004]). Defendant failed to preservefor our review his challenge to Supreme Court's Molineux ruling (see CPL470.05 [2]), and we decline to exercise our power to review that challenge as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Present—Hurlbutt,J.P., Centra, Peradotto, Carni and Gorski, JJ.