| People v Bailey |
| 2011 NY Slip Op 00293 [80 AD3d 999] |
| January 20, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Harvey A.Bailey, Appellant. |
—[*1]
Spain, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered March 6, 2009, upon a verdict convicting defendant of the crime of criminal possessionof a controlled substance in the third degree.
Based on a communication from a confidential informant (hereinafter CI), and ensuingsurveillance of defendant, a search warrant was issued for defendant's apartment where narcotics,drug paraphernalia and over $7,000 in cash were discovered. Thereafter, defendant was indictedon one count of criminal possession of a controlled substance in the third degree and, following ajury trial, was convicted and sentenced to seven years in prison followed by three years ofpostrelease supervision. On defendant's appeal, we affirm.
We turn first to defendant's claim that County Court erred in denying trial counsel's motionto withdraw as counsel to defendant. The record reveals that counsel, retained by defendant,asked to be relieved because defendant was insisting that he file motions that counsel felt werefrivolous. Defendant had expressed dissatisfaction with his chosen attorney months earlier and,although the court clearly and repeatedly advised defendant that he could retain new counsel andeven granted an adjournment for that purpose, defendant never did so. In denying defensecounsel's motion to withdraw, the court again cited defendant's right to obtain new [*2]counsel, but declined—as the case was proceeding totrial—to allow defense counsel to terminate his representation of defendant wheredefendant had not timely acted. The court allowed defendant to bring pro semotions—which he did with technical assistance from defense counsel—andreminded defense counsel of his ethical obligation to zealously represent defendant. Given theclear evidence, on this record, that defendant had ample opportunity to secure an attorney of hischoice and that his attorney was willing and able to zealously represent him despite theirdifferences, we hold that County Court did not err in denying defense counsel's request towithdraw (see People v Sapienza,75 AD3d 768, 769-771 [2010]; People v Manley, 70 AD3d 1125, 1126 [2010]; People v Nelson, 1 AD3d 796,797-798 [2003], lv denied 1 NY3d 631 [2004]; see generally People vArroyave, 49 NY2d 264, 270-271 [1980]).
We also reject defendant's argument—advanced in his pro se brief—that he wasdenied the effective assistance of counsel. On the record before us, defendant was providedmeaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Dewey, 18 AD3d 894,895-896 [2005]). Counsel effectively represented defendant at every critical stage in theproceedings, offering articulate opening and closing arguments, successfully limiting theintroduction of defendant's prior convictions and Molineux evidence during pretrialhearings, pursuing a plausible defense strategy, vigorously conducting cross-examination ofwitnesses and making appropriate objections (see e.g. People v Molano, 70 AD3d 1172, 1176-1177 [2010], lvdenied 15 NY3d 776 [2010]; Peoplev Blanchard, 63 AD3d 1291, 1292 [2009], lv denied 13 NY3d 794 [2009]).
Defendant primarily focuses on counsel's failure to make a pretrial motion to suppress theevidence recovered from his apartment. "The fact that defense counsel did not request aparticular pretrial hearing does not necessarily constitute ineffective assistance of counsel" (People v Jackson, 67 AD3d 1067,1068 [2009], lv denied 14 NY3d 801 [2010] [citation omitted]). In any event, defendantmade a pro se suppression motion that County Court considered and properly rejected in awell-reasoned decision concluding that the police had probable cause to obtain the warrant. TheCI, whose identity was known to the police, told them that defendant had previously sold crackcocaine to her upwards of 25 times, explained that he delivered drugs to her on his bicycle,described the apartment defendant lived in, described where defendant retrieved drugs fromwithin the apartment and identified him from a photograph. The CI then called defendant withthe police present and left a message expressing her desire to buy crack cocaine. When the CIsubsequently contacted the police to tell them she had spoken to defendant and he was on hisway to deliver cocaine, the police observed defendant leave his home on his bicycle and head inthe direction of the CI's apartment. Inasmuch as the information provided by the CI was withinher personal knowledge and against her penal interest (see People v Lisk, 216 AD2d 851,852-853 [1995], lv denied 87 NY2d 904 [1995]), and was corroborated by the personalobservations of the police, it was sufficiently reliable to create probable cause to believe thatdefendant was engaging in or had engaged in illegal activity and that contraband would be foundwithin his apartment (see CPL 690.40 [2]; People v Robinson, 72 AD3d 1277, 1278 [2010], lv denied15 NY3d 809 [2010]; People vVargas, 72 AD3d 1114, 1115-1116 [2010], lv denied 15 NY3d 758 [2010]; People v Bradley, 59 AD3d 806,807 [2009]). Indeed, the evidence before the court was more than ample to support the court'sfinding that the search warrant was based on probable cause.
Defendant's assertion that counsel was ineffective for failing to challenge his constructivepossession of the contraband found in his apartment is also unavailing. Counsel did challenge thetheory of possession in his cross-examination of witnesses and in his closing [*3]statement, emphasizing that the apartment was also occupied bydefendant's girlfriend. In any event, ample uncontroverted evidence exists to support the jury'sfinding that defendant exercised dominion and control over the apartment. The CI anddefendant's girlfriend testified that defendant lived in the apartment, and the police recoveredmail in the apartment addressed to defendant at the address of the apartment. Under thesecircumstances, the jury's finding that defendant constructively possessed the cocaine was notagainst the weight of the credible evidence (see People v Paige, 77 AD3d 1193, 1196 [2010], lv granted15 NY3d 925 [2010]; People v Vargas, 72 AD3d at 1118-1119; People v Echavarria, 53 AD3d859, 861-862 [2008], lv denied 11 NY3d 832 [2008]; People v Tarver, 292AD2d 110, 113-114 [2002], lv denied 98 NY2d 702 [2002]).
Finally, considering defendant's criminal history and finding no extraordinary circumstancesor abuse of discretion in the imposition of the sentence, we hold that defendant's sentence is notharsh and excessive so as to warrant modification (see CPL 470.15 [6] [b]; People v Manley, 70 AD3d 1125,1125 [2010]; People v Miles, 61AD3d 1118, 1120 [2009], lv denied 12 NY3d 918 [2009]; People v Douglas, 57 AD3d 1105,1106 [2008], lv denied 12 NY3d 783 [2009]).
Peters, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.