| People v Russell |
| 2011 NY Slip Op 02598 [83 AD3d 1463] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Frank Russell,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedMarch 9, 2007. The judgment convicted defendant, upon a nonjury verdict, of criminal sale of acontrolled substance in the third degree and criminal possession of a controlled substance in thethird degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reducing the period of postrelease supervision imposed for each count to a period of threeyears and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him following a bench trial ofcriminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) andcriminal possession of a controlled substance in the third degree (§ 220.16 [1]), defendantcontends that the verdict is against the weight of the evidence. We reject that contention (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Here, "the People presentedevidence that defendant did more than simply direct the undercover officers to a location wherethey could purchase crack cocaine" (People v Brown, 50 AD3d 1596, 1597 [2008]). Indeed, theypresented evidence that defendant offered to drive with the officers to make the purchase and thathe obtained the crack cocaine from the supplier for them. Consequently, viewing the evidence inlight of the elements of the crimes in this bench trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat County Court did not fail to give the evidence the weight it should be accorded (see generally People v Poole, 79 AD3d1685, 1686 [2010]; Brown, 50 AD3d at 1598).
We further reject defendant's contention that the court erred in failing to conduct aWade hearing. "[A]lthough there is no categorical rule exempting from requestedWade hearings confirmatory identifications by police officers by merely labeling them assuch . . ., a hearing is not required where the defendant in a buy and bust operationis identified by a trained undercover officer who observed [the] defendant during the face-to-facedrug transaction knowing [that the] defendant would shortly be arrested" (People v Releford, 73 AD3d 1437,1438 [2010], lv denied 15 NY3d 808 [2010] [internal quotation [*2]marks omitted]; see People v Wharton, 74 NY2d 921,922-923 [1989]; see also People vBoyer, 6 NY3d 427, 432-433 [2006]; People v Stubbs, 6 AD3d 1109 [2004], lv denied 3 NY3d663 [2004]).
We likewise reject defendant's contention that he was denied effective assistance of counsel."[T]he failure of defense counsel to move to dismiss the indictment pursuant to CPL 30.30 didnot constitute ineffective assistance of counsel inasmuch as such a motion would not have beensuccessful" (People v McDuffie, 46AD3d 1385, 1386 [2007], lv denied 10 NY3d 867 [2008]), nor was defense counselineffective based on his failure to challenge the legality of defendant's arrest inasmuch as such achallenge also would have been unsuccessful (see People v Garcia, 75 NY2d 973, 974[1990]). Defendant's further contention that defense counsel was ineffective in failing to conducta proper investigation of the case and to obtain certain records concerning defendant's medicaltreatment is based on matters outside the record on appeal and thus must be raised by way of amotion pursuant to CPL 440.10 (seePeople v Cobb, 72 AD3d 1565, 1567 [2010], lv denied 15 NY3d 803 [2010]; People v Washington, 39 AD3d1228, 1230 [2007], lv denied 9 NY3d 870 [2007]).
Defendant also contends that he was denied effective assistance of counsel based on analleged conflict of interest with defense counsel. That contention lacks merit. To prevail on sucha contention, a defendant must prove that " 'the conduct of his defense was in fact affected by theoperation of the conflict of interest, or that the conflict operated on the representation' " (People v Konstantinides, 14 NY3d1, 10 [2009]; see People v Alicea, 61 NY2d 23, 31 [1983]). Even assuming,arguendo, that there was such a conflict of interest, we conclude that defendant failed to "'demonstrate that the conduct of his defense was in fact affected by the operation of [that]conflict' " (People v Cooper, 79AD3d 1684, 1685 [2010], quoting Alicea, 61 NY2d at 31). To the extent thatdefendant contends that the court erred in denying defense counsel's request to be relieved atsentencing, we conclude that it lacks merit. A conflict of personalities between a defendant andhis or her attorney does not rise to the level of a conflict of interest impacting the defendant'sright to a fair trial (see Konstantinides, 14 NY3d at 10).
Finally, with respect to defendant's challenge to the sentence imposed, along with an allegedtrial tax imposed by the court, we note that "[t]he mere fact that a sentence imposed after trial isgreater than that offered in connection with plea negotiations is not proof that defendant waspunished for asserting his right to trial" (People v Brink, 78 AD3d 1483, 1485 [2010] [internal quotationmarks omitted]). Indeed, the record here " 'shows no retaliation or vindictiveness against thedefendant for electing to proceed to trial' " (People v Dorn, 71 AD3d 1523, 1524 [2010]; see People v Powell, 81 AD3d1307 [2011]). We reject defendant's challenge to the severity of concurrent determinateterms of incarceration imposed, but we agree with him that the sentence is illegal insofar as itincludes an additional period of postrelease supervision of 3½ years with respect to eachcount (see Penal Law § 70.45 [2] [d]). We therefore modify the judgment byreducing the period of postrelease supervision to a period of three years (see People v Smith, 63 AD3d1625 [2009], lv denied 13 NY3d 800 [2009]; People v Childres, 60 AD3d 1278, 1279 [2009], lv denied12 NY3d 913 [2009]). Present—Smith, J.P., Fahey, Peradotto, Lindley and Martoche, JJ.