| People v Adair |
| 2011 NY Slip Op 03783 [84 AD3d 1752] |
| May 6, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Luther Adair, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered June6, 2006. The judgment convicted defendant, upon a jury verdict, of attempted criminalpossession of a weapon in the second degree, criminal contempt in the first degree, harassment inthe second degree (two counts) and resisting arrest.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,attempted criminal possession of a weapon in the second degree (Penal Law §§110.00, 265.03 [former (2)]) and criminal contempt in the first degree (§ 215.51 [b] [v]),defendant contends that the evidence is legally insufficient to support the conviction of attemptedcriminal possession of a weapon because the People failed to establish that he attempted topossess the weapon in question or that he intended to use it unlawfully against another person. Asdefendant correctly concedes, that contention is unpreserved for our review inasmuch as hismotion for a trial order of dismissal at the close of the People's proof was not specificallydirected at the grounds raised on appeal (see People v Gray, 86 NY2d 10, 19 [1995]).
In any event, defendant's contention is without merit. Defendant was involved in analtercation with several uniformed police officers who responded to a 911 call regarding adomestic dispute between defendant and his girlfriend, on whose behalf an order of protectionhad been issued against defendant. One of the officers testified at trial that, during the altercation,he felt defendant tugging on the holster for his service revolver and that, when the officer reacheddown, he felt defendant's hand on the top of the holster. The officer yelled out to the otherofficers that defendant was trying to grab his gun. After defendant was subdued and handcuffed,the officer observed that one of the snaps on his holster had been opened. Another officertestified at trial that he heard the snap on the holster open during the altercation. Althoughdefendant contends that his hand inadvertently came into contact with the holster during thealtercation, we conclude that there is legally sufficient evidence that defendant attempted to gainpossession of the officer's firearm. We further conclude that, considering the [*2]circumstances under which defendant was grabbing for the officer'sfirearm, there is a valid line of reasoning and permissible inferences from which a rational jurycould have found that defendant's intent in attempting to possess the weapon was to use itunlawfully against the police officers (see generally People v Bleakley, 69 NY2d 490,495 [1987]). In addition, viewing the evidence in light of the elements of the crime of attemptedcriminal possession of a weapon in the second degree as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict with respect to that count is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495).
We reject the further contention of defendant that County Court's denial of his two requestsfor an adjournment deprived him of a fair trial. The decision whether to grant an adjournment liesin the sound discretion of the trial court (see People v Spears, 64 NY2d 698, 699-700[1984]; People v McNear, 265 AD2d 810, 810-811 [1999], lv denied 94 NY2d864 [1999]), and the court's exercise of that discretion "in denying a request for an adjournmentwill not be overturned absent a showing of prejudice" (People v Arroyo, 161 AD2d 1127,1127 [1990], lv denied 76 NY2d 852 [1990]; see People v Bones, 50 AD3d 1527 [2008], lv denied 10NY3d 956 [2008]). Here, defendant failed to make the requisite showing of prejudice to warrantreversal. We note that defense counsel offered no reason for his first request for an adjournment,which was made on the first day of trial. Defense counsel's second request for an adjournment,made after the People had rested, was based on the unavailability of the officer who arrived at thescene during the altercation. That officer was on the People's witness list but did not testifybecause she was out of town on vacation. In requesting the adjournment, defense counsel statedthat he anticipated that the officer's testimony would be "very favorable" to defendant. The recorddemonstrates, however, that the officer in question was not present at the scene when defendantattempted to gain possession of the other officer's weapon, and her police report did not indicatein any way that her testimony would have been favorable to defendant. Under thosecircumstances, it cannot be said that the court abused its discretion in denying defense counsel'srequests for an adjournment (see Peoplev Comfort, 60 AD3d 1298, 1299 [2009], lv denied 12 NY3d 924 [2009];People v Povio, 284 AD2d 1011 [2001], lv denied 96 NY2d 923 [2001]).
Defendant contends that he was denied effective assistance of counsel because defensecounsel did not have sufficient time to prepare for trial. Although defense counsel was assignedto represent defendant 17 days prior to trial, it is apparent from his thorough cross-examinationof prosecution witnesses and his overall performance that defense counsel had adequatelyprepared for trial. We conclude that defense counsel was not ineffective based on his failure tosubpoena the officer who was on vacation at the time of the trial for the reasons stated above. Inaddition, defense counsel cannot be deemed ineffective for failing to move for a trial order ofdismissal with respect to the count charging defendant with attempted criminal possession of aweapon on the grounds raised on appeal, inasmuch as such a motion would have had "little or nochance of success" (People v Stultz,2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]; see generally People v Caban, 5 NY3d143, 152 [2005]). Viewing the evidence, the law and the circumstances of this case, intotality and as of the time of the representation, we conclude that defense counsel providedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Present—Centra, J.P., Fahey, Peradotto, Lindley and Sconiers, JJ.