| People v Jackson |
| 2009 NY Slip Op 07889 [67 AD3d 1067] |
| November 5, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Terrance J.Jackson, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Chemung County (Buckley, J.),rendered August 11, 2008, convicting defendant upon his plea of guilty of the crimes of criminalpossession of a weapon in the second degree, attempted assault in the second degree andcriminal sale of a controlled substance in the third degree.
On January 1, 2008 at approximately 3:00 a.m., when responding to a call reporting ashooting at a particular location in the City of Elmira, Chemung County, two police officers sawdefendant walking on the public street with another individual in the vicinity of the shooting.When the officers pulled over and stopped their vehicle, defendant fled and, while the officerschased him on foot, they witnessed defendant discard a gun. Based upon that incident, defendantwas charged with criminal possession of a weapon in the second degree. Additionally, defendantwas charged in two separate and unrelated indictments with attempted murder in the seconddegree, attempted assault in the first degree and criminal sale of a controlled substance in thethird degree.
Defendant pleaded guilty to the crimes of criminal possession of a weapon in the seconddegree, attempted assault in the second degree and criminal sale of a controlled substance in thethird degree in satisfaction of all three indictments. He was thereafter sentenced to concurrentprison terms of 10 years, with five years of postrelease supervision, on the count of criminal[*2]possession of a weapon in the second degree,1
We affirm. To the extent that defendant argues that his conviction of criminal possession of aweapon in the second degree should be reversed because the discovery of the gun was the resultof an unlawful seizure, such issue is not preserved for our review, as he failed to make a motionto suppress the gun (see CPL art 710; People v Lancaster, 272 AD2d 719,719-720 [2000]). Furthermore, we are not persuaded by defendant's contention that defensecounsel's failure to make a motion to suppress the gun deprived him of meaningfulrepresentation. In determining the effectiveness of counsel, we must look at the "totality of thecircumstances" (People vAnderson, 38 AD3d 1061, 1063 [2007], lv denied 8 NY3d 981 [2007]; People v Kalteux, 2 AD3d 967,968 [2003]; People v Van Gorden, 307 AD2d 547, 547-548 [2003], lv denied 1NY3d 581 [2003]). The fact that defense counsel did not request a particular pretrial hearingdoes not necessarily constitute ineffective assistance of counsel (see People v Hall, 57 AD3d 1222,1227 [2008], lv denied 12 NY3d 817 [2009]).
Here, defendant failed to demonstrate the absence of a " 'strategic or other legitimateexplanation[ ]' " (People v Caban, 5NY3d 143, 152 [2005], quoting People v Rivera, 71 NY2d 705, 709 [1988]) forcounsel's failure to request a hearing to determine the admissibility of the gun (see People vHall, 57 AD3d at 1227). It is clear from the record that counsel's strategy focused largely onavoiding a conviction on the class B violent felony charge of attempted murder in the seconddegree. Notably, while it is uncertain from this record whether defendant would have succeededin suppressing the gun with respect to the weapons possession charge, defendant received anadvantageous plea agreement encompassing all of the indictments—including theattempted murder charge—which significantly reduced his sentence exposure (see People v Sterling, 57 AD3d1110, 1113 [2008], lv denied 12 NY3d 788 [2009]; People v Farrington, 51 AD3d1221, 1222 [2008], lv denied 11 NY3d 736 [2008]; People v Brown, 49 AD3d 1028,1028-1029 [2008]). Not only could defendant have faced significantly longer sentences on eachof the charges, but those sentences could have been imposed consecutively (see PenalLaw § 70.25).
We further note that defense counsel made other appropriate pretrial motions (see Peoplev Hall, 57 AD3d at 1227), and defendant stated during the plea colloquy that counselanswered all of his questions and that he was satisfied with counsel's services (see People v Dobrouch, 59 AD3d781, 781 [2009], lv denied 12 NY3d 853 [2009]; People v Singletary, 51 AD3d 1334, 1335 [2008], lvdenied 11 NY3d 741 [2008]; People v Riddick, 40 AD3d 1259, 1260 [2007], lv denied 9NY3d 925 [2007]). Under all of these circumstances, we conclude that defendant receivedmeaningful representation.
We also reject defendant's contention that his sentence was harsh and excessive. Inasmuch asCounty Court imposed the agreed-upon sentence and considering defendant's criminal history,among other things, we find no abuse of discretion or extraordinary circumstances warranting areduction of his sentence in the interest of justice (see People v Milstead, 61 AD3d 1179 [2009]; People vSterling, 57 AD3d at 1113).
Peters, J.P., Spain, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed.