| People v Woodard |
| 2012 NY Slip Op 04897 [96 AD3d 1619] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Justin T.Woodard, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.),rendered May 14, 2009. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree and attempted robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofmurder in the second degree (Penal Law § 125.25 [3] [felony murder]) and attemptedrobbery in the first degree (§§ 110.00, 160.15 [2]) in connection with the shootingdeath of the victim by one or both of the codefendants. Defendant contends that Supreme Courterred in refusing to instruct the jury on the affirmative defense to felony murder (§ 125.25[3]), on the ground that there was no evidence to support a determination that defendant knewthat the codefendants' guns were loaded. We reject that contention (see People v Cox, 21 AD3d 1361,1363 [2005], lv denied 6 NY3d 753 [2005]). The evidence established that defendantwillingly drove the codefendants from Elmira to Rochester for the express purpose of robbing thevictim and that defendant knew that the codefendants had guns with them for that purpose. Thus,when viewing the evidence in the light most favorable to defendant (see People v White,79 NY2d 900, 903 [1992]), we conclude that the evidence does not support the affirmativedefense (see People v Samuel, 88AD3d 1020, 1021 [2011], lv denied 18 NY3d 861 [2011]; cf. People vCable, 96 AD2d 251, 260-261 [1983], revd on other grounds sub nom. Matter ofAnthony M., 63 NY2d 270 [1984]).
Defendant failed to preserve for our review his contention that the court erred in refusing topermit defense counsel to pursue questioning at the suppression hearing with respect to whetherdefendant's arrest was based upon probable cause, because defendant did not move to suppressevidence on that ground (see People vMobley, 49 AD3d 1343, 1343-1344 [2008], lv denied 11 NY3d 791 [2008]).Defendant also failed to preserve for our review his contention that the court abused its discretionand denied defendant his constitutional rights by denying his motion pursuant to CPL 710.40 (4)to reopen the suppression hearing on the issue whether the arrest was based upon probable cause.Instead, defendant sought to reopen the hearing based upon his contention that he invoked hisright to counsel when he was arrested in Elmira, before being transported to meet with policeofficers from the Rochester Police Department (see Mobley, 49 AD3d at 1343-1344)."Because defendant had knowledge of the facts surrounding his arrest, those facts may not be[*2]considered additional pertinent facts . . .discovered by the defendant which he could not have discovered with reasonable diligence beforethe determination of the motion" (People v Simon, 222 AD2d 1117, 1117 [1995], lvdenied 87 NY2d 977 [1996], lv denied 88 NY2d 854 [1996] [internal quotationmarks omitted]; see CPL 710.40 [4]). In any event, inasmuch as evidence at thesuppression hearing established that defendant had been identified in a photo array as aparticipant in the crimes prior to his arrest, we conclude that the arrest was based upon probablecause (see People v Dumbleton, 67AD3d 1451, 1452 [2009], lv denied 14 NY3d 770 [2010]).
Defendant also failed to preserve for our review his contention that the court erred inpermitting the People to use his grand jury testimony in their direct case, in contravention of acooperation agreement defendant had signed (see CPL 470.05 [2]). In any event, weconclude that any error is harmless inasmuch as the evidence is overwhelming and there is not asignificant probability that he would have been acquitted if the alleged error had not occurred(see People v Crimmins, 36 NY2d 230, 241-242 [1975]). Defendant's statement to thepolice, which was consistent with his grand jury testimony, was also admitted in evidence, and itwas corroborated by the testimony of an eyewitness and by physical evidence (see generallyPeople v Faust, 73 NY2d 828, 829 [1988], rearg denied 73 NY2d 995 [1989]).
We reject defendant's contention that he was deprived of effective assistance of counsel. Thefailure to provide a specific basis for a trial order of dismissal that had no chance of success doesnot constitute ineffective assistance of counsel (see People v Horton, 79 AD3d 1614, 1616 [2010], lv denied16 NY3d 859 [2011]). Indeed, defendant does not contend on appeal that the evidence islegally insufficient to support the conviction (see id.). Further, defendant has failed todemonstrate that a motion to suppress his statement based on the lack of probable cause for hisarrest, if made, would have been successful, and thus he has failed to establish that defensecounsel was ineffective for failing to make the motion (see People v Borcyk, 60 AD3d 1489, 1490 [2009], lv denied12 NY3d 923 [2009]). Defendant's remaining contentions with respect to defense counsel'sperformance either are outside the record and thus not reviewable on direct appeal (see People v Slater, 61 AD3d1328, 1329 [2009], lv denied 13 NY3d 749 [2009]), or they are without merit(see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Finally, in light of his willing participation in the plan to rob the victim and his knowledgethat the codefendants both had guns, we reject defendant's contention that the sentence is undulyharsh and severe. Present—Scudder, P.J., Smith, Fahey, Lindley and Martoche, JJ.