| People v Henry |
| 2010 NY Slip Op 05190 [74 AD3d 1860] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kevin P.Henry, Appellant. |
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Appeal from a judgment of the Supreme Court, Cayuga County (Joseph D. Valentino, J.),rendered July 1, 2008. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a controlled substance in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofcriminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]).The contention of defendant that the evidence is legally insufficient to support the conviction isnot preserved for our review (see People v Gray, 86 NY2d 10, 19 [1995]). Althoughdefendant moved for a trial order of dismissal at the close of the People's case and renewed thatmotion after presenting evidence, the motion was not specifically directed at the alleged errorraised on appeal (see People vHawkins, 11 NY3d 484, 492 [2008]; Gray, 86 NY2d at 19). In any event,defendant's contention is without merit. A police officer testified at trial that, when sheannounced her presence to defendant, she observed him make a motion after which she observeda blue container fall to the ground under the vehicle next to which defendant was standing. Theofficer further testified that a plastic bag containing 3.5 grams of white chunky substance wasrecovered on the ground in proximity to the blue container and that the substance tested positivefor cocaine. Thus, " 'there is a valid line of reasoning and permissible inferences from which arational jury could have found the elements of the crime proved beyond a reasonable doubt' " (People v Danielson, 9 NY3d 342,349 [2007]; see also People vRobinson, 26 AD3d 202 [2006], lv denied 7 NY3d 762 [2006]). The furthercontention of defendant that Supreme Court erred in refusing to dismiss the indictment based onthe legal insufficiency of the evidence before the grand jury is not reviewable on appeal from ajudgment of conviction based on legally sufficient trial evidence (see CPL 210.30 [6]; People v Baker, 67 AD3d 1446[2009], lv denied 14 NY3d 769 [2010]; People v Lee, 56 AD3d 1250, 1251 [2008], lv denied 12NY3d 818 [2009]).
Viewing the evidence in light of the elements of the crime as charged to the jury (seeDanielson, 9 NY3d at 349), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The testimony ofdefendant that he never [*2]possessed any cocaine and that henever threw anything beneath the vehicle presented credibility issues for the jury to resolve, andits credibility determinations are entitled to great deference (see generally id.).
Defendant failed to preserve for our review his contention that the warrant obtained by thepolice to search, inter alia, the vehicle next to which he was standing was not supported byprobable cause (see generally People vKendricks, 23 AD3d 1119 [2005]). In any event, that contention lacks merit. Thewarrant application was supported by the statements of multiple, experienced confidentialinformants with a history of reliability, and those statements indicated that the vehicle inquestion was used in the sale of cocaine. The police confirmed those statements with subsequentinvestigations and controlled buys. We thus conclude that the People satisfied both prongs of theAguilar-Spinelli test by establishing that the confidential informants were reliable andhad a basis of knowledge for the information they provided (see People v Flowers, 59 AD3d 1141, 1142 [2009]). Defendantalso failed to preserve for our review his contention that the police unconstitutionally searchedhim and seized the cocaine based on his compliance with the officer's directions (seegenerally People v Mitchell, 303 AD2d 422, 423 [2003], lv denied 100 NY2d 564[2003], lv denied upon reconsideration 100 NY2d 597 [2003]), and we decline toexercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
Defendant expressly consented to the court's approval of the Sandoval compromiseoffered by the People, and thus he waived his contention that the Sandoval rulingconstitutes an abuse of discretion (see generally People v Hansen, 95 NY2d 227, 230 n 1[2000]). In any event, the court properly balanced the probative value of defendant's priorconvictions against the risk of prejudice to defendant (see People v McNair, 45 AD3d 872 [2007], lv denied 10NY3d 813 [2008]; People v Alston,27 AD3d 1141, 1142 [2006], lv denied 6 NY3d 892 [2006]; see generally Peoplev Hayes, 97 NY2d 203, 207-208 [2002]).
Defendant further contends that he was denied effective assistance of counsel based ondefense counsel's failure to object to certain testimony and to make various motions andarguments. We reject that contention. Defendant failed to demonstrate that those alleged errorswere not strategic in nature (see generally People v Rivera, 71 NY2d 705, 709 [1988]),and mere disagreement with trial strategy is insufficient to establish that defense counsel wasineffective (see People v Knightner,11 AD3d 1002, 1005 [2004], lv denied 4 NY3d 745 [2004]). Further, "[t]here can beno denial of effective assistance of . . . counsel arising from [defense] counsel'sfailure to 'make a motion or argument that has little or no chance of success' " (People v Caban, 5 NY3d 143, 152[2005]). Viewing the evidence, the law and the circumstances of this case in totality and as of thetime of the representation, we conclude that defendant received meaningful representation(see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Finally, the sentence is not unduly harsh or severe. Present—Martoche, J.P., Fahey,Carni, Sconiers and Green, JJ.