| People v Crouch |
| 2010 NY Slip Op 01155 [70 AD3d 1369] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JackieCrouch, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.),rendered June 5, 2008. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [3]), defendantcontends that Supreme Court erred in refusing to suppress physical evidence, i.e., the handgun heallegedly possessed, and statements that he made to the police following his arrest. In his pretrialmotion papers, defendant sought suppression of his statements only on the ground that they wereinvoluntarily made, and he did not seek suppression of the gun. Following a Huntleyhearing, defense counsel asserted for the first time, in a memorandum of law, that defendant wasunlawfully stopped by the police. On appeal, he makes yet a third argument, conceding that thestop was lawful and instead contending that his initial detention by the police was actually anarrest unsupported by probable cause and thus that suppression of the handgun and statements isrequired. That contention therefore is not preserved for our review (see People v Johnson, 52 AD3d1286, 1287 [2008], lv denied 11 NY3d 738 [2008]; People v Lugo, 281AD2d 957 [2001]).
We reject the further contention of defendant that he was deprived of effective assistance ofcounsel based on defense counsel's failure to request a probable cause hearing (see generallyPeople v Baldi, 54 NY2d 137, 147 [1981]). It is well settled that "a showing that [defense]counsel failed to make a particular pretrial motion generally does not, by itself, establishineffective assistance of counsel" (People v Rivera, 71 NY2d 705, 709 [1988]; see People v Webster, 56 AD3d1242 [2008], lv denied 11 NY3d 931 [2009]). In order to prevail on his contentionthat he was deprived of effective assistance of counsel, defendant was required to demonstrate"the absence of strategic or otherwise legitimate explanations" for defense counsel's failure tomake the pretrial motion (People v Garcia, 75 NY2d 973, 974 [1990]; see People v Jacobs, 52 AD3d1182 [2008], lv denied 11 NY3d 926 [2009]), and defendant failed to do so here.[*2]Even assuming, arguendo, that the police lacked probablecause to arrest defendant, we conclude that there would have been no basis for suppression of thegun inasmuch as the discovery of the gun by the police was not causally related to defendant'sseizure (see People v Cooley, 48AD3d 1091 [2008], lv denied 10 NY3d 861 [2008], citing People v Arnau,58 NY2d 27, 32-34 [1982]). Only the statements made by defendant in the police vehiclefollowing his gunpoint detention were possibly subject to suppression as the product of anunlawful arrest, and those statements may be deemed to be exculpatory inasmuch as defendantdenied possession of the gun and stated that it belonged to one of his codefendants.Present—Scudder, P.J., Smith, Fahey and Lindley, JJ.