| People v Watson |
| 2011 NY Slip Op 09729 [90 AD3d 1666] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RandolphWatson, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered January 12, 2009. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the second degree and assault in the second degree.
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 criminalpossession of a weapon in the second degree (Penal Law § 265.03 [1] [b]) and assault inthe second degree (§ 120.05 [2]), defendant contends that his statements to the police tothe effect of "I'll show you the gun," made after he had invoked his right to counsel, were notspontaneous and should have been suppressed. We reject that contention. Although defendant didnot specifically contend before Supreme Court that it had applied the incorrect legal standard inconcluding that his statements were spontaneous and thus that his right to counsel was notthereby violated, we note that "the violation of the right to counsel may be raised for the firsttime on appeal" (People v Whetstone, 281 AD2d 904 [2001], lv denied 96 NY2d909 [2001]; see People v Sierra, 85AD3d 1659, 1660 [2011]). Nevertheless, "we conclude that the statements were spontaneousinasmuch as 'they were in no way the product of an interrogation environment [or] the result ofexpress questioning or its functional equivalent' " (Sierra, 85 AD3d at 1660, quotingPeople v Harris, 57 NY2d 335, 342 [1982], cert denied 460 US 1047 [1983][internal quotation marks omitted]; see People v Rivers, 56 NY2d 476, 479-480 [1982],rearg denied 57 NY2d 775 [1982]). Thus, the court properly refused to suppressdefendant's statements based on the alleged violation of his right to counsel (see People v Cascio, 79 AD3d1809, 1811 [2010], lv denied 16 NY3d 893 [2011]).
Defendant further contends that his consent to the search that yielded the gun andammunition was invalid because it was provided in the absence of counsel, and thus that thesearch was unlawful. Even assuming, arguendo, that we agree with defendant, we neverthelessconclude that the error is harmless. Indeed, there is no reasonable possibility that theconstitutional error in failing to suppress the gun and the ammunition might have contributed tothe conviction, and thus the error is harmless beyond a reasonable doubt (see People vCrimmins, 36 NY2d 230, 237 [1975]). In view of our determination, we do not reachdefendant's further related contention that the doctrine of inevitable discovery is inapplicable.[*2]
Defendant failed to preserve for our review hiscontentions that the police lacked probable cause to arrest him and that his statements, the gun,and the ammunition should have been suppressed as the product of an unlawful arrest (see People v Johnson, 60 AD3d695 [2009], lv denied 12 NY3d 916 [2009]; People v Johnson, 52 AD3d 1286, 1287 [2008], lv denied11 NY3d 738 [2008]; People v Hyla, 291 AD2d 928 [2002], lv denied 98 NY2d652 [2002]). Defendant also failed to preserve for our review his contention that the suppressionhearing testimony of the police officers was patently tailored to nullify constitutional objectionsand was incredible as a matter of law (see CPL 470.05 [2]). We decline to exercise ourpower to review those contentions as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]).
To the extent that defendant contends that defense counsel was ineffective for failing to raisethe issues of probable cause for his arrest and the credibility of the police officers' testimony atthe suppression hearing, we reject that contention because "[t]here can be no denial of effectiveassistance of . . . counsel arising from [defense] counsel's failure to 'make a motionor argument that has little or no chance of success' " (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287[2004], rearg denied 3 NY3d 702 [2004]; see People v McGee, 87 AD3d 1400, 1403 [2011]; People v Biro, 85 AD3d 1570,1572 [2011]).
Contrary to defendant's contention, his sentence of a determinate term of imprisonment of sixyears with five years of postrelease supervision for his conviction of criminal possession of aweapon in the second degree is not unduly harsh or severe. Finally, we reject defendant'scontention that the imposition of a $5,000 fine was unduly harsh and severe or an abuse ofdiscretion. "Supreme Court did not abuse its discretion in imposing a fine to impress upondefendant the severity of his conduct" (People v McKenzie, 28 AD3d 942, 943 [2006], lv denied 7NY3d 759 [2006]). Further, it appears from the record before us that defendant has the resourcesto pay a substantial portion of the fine, despite the appointment of assigned counsel to representhim (cf. People v Gemboys, 270 AD2d 847, 848 [2000]; People v Helm,260 AD2d 803 [1999]). Present—Scudder, P.J., Centra, Lindley and Martoche, JJ.