| People v Padgett |
| 2011 NY Slip Op 06864 [87 AD3d 1166] |
| September 27, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Alfonso Padgett, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and Roni C. Piplani of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Blumenfeld, J.), rendered February 17, 2009, convicting him of burglary in the third degree,after a nonjury trial, and imposing sentence. The appeal brings up for review the denial, after ahearing, of that branch of the defendant's omnibus motion which was to suppress physicalevidence.
Ordered that the judgment is affirmed.
The defendant's contention that he was deprived of the effective assistance of counsel byvirtue of his attorney's failure to make a certain argument in support of that branch of thedefendant's omnibus motion which was to suppress physical evidence is without merit. Defensecounsel's argument that the physical evidence did not belong to the defendant—rather thanpursuing the argument that the physical evidence belonged to the defendant but should besuppressed because the police lacked reasonable suspicion to detain him—was a legitimatetrial tactic and, thus, constituted meaningful representation (see People v Baldi, 54 NY2d137, 146 [1981]). In any event, counsel cannot be held ineffective for "fail[ing] to make a motionor argument that has little or no chance of success" (People v Caban, 5 NY3d 143, 152 [2005] [internal quotation marksomitted]; see People v Kurth, 82AD3d 905, 906 [2011]), and any argument that the police lacked reasonable suspicion todetain the defendant would likely have failed because ample evidence existed that the police hadreasonable suspicion to believe that the defendant was committing a crime.
The defendant's further contention that he was deprived of the effective assistance of counselby virtue of his attorney's failure to request that the Supreme Court consider the lesser-includedoffense of criminal trespass in the third degree is also without merit. The alleged failure appearsto have been part of defense counsel's legitimate trial strategy, and the defendant failed to "'demonstrate the absence of strategic or other legitimate explanations for counsel's [supposed]failure[s]' " (People v Windley, 70AD3d 1060, 1061 [2010], quoting People v Taylor, 1 NY3d 174, 177 [2003] [internal quotation marksomitted]; see People v Ryan, 90 NY2d 822, 823-824 [1997]; People v Baldi, 54NY2d at 151). Rivera, J.P., Florio, Leventhal and Roman, JJ., concur.