| People v Jackson |
| 2013 NY Slip Op 05136 [108 AD3d 1079] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vRobert Jackson, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered September 29, 2009. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a controlled substance in the first degree and criminal possessionof a controlled substance in the third 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, ofcriminal possession of a controlled substance in the first degree (Penal Law §220.21 [1]) and criminal possession of a controlled substance in the third degree (§220.16 [1]), defendant contends that County Court erred in refusing to suppress physicalevidence seized after the police stopped a vehicle in which he was a passenger becausethe police improperly stopped the vehicle. We reject that contention. "The Peopleestablished the reliability and basis of knowledge of the informant who provided thepolice with information concerning defendant's drug activities . . . , and thepolice had reasonable suspicion to stop defendant's vehicle based on that information"(People v Dwyer, 73 AD3d1467, 1468 [2010], lv denied 15 NY3d 851 [2010]; see People v Porter, 101 AD3d44, 47-48 [2012], lv denied 20 NY3d 1064 [2013]).
Defendant's contentions that his trial attorney had a conflict of interest and that hewas ineffective due to that conflict concern matters outside the record and thus must beraised by way of a motion pursuant to CPL article 440 (see People v Pagan, 12 AD3d1143, 1144 [2004], lv denied 4 NY3d 766 [2005]; People v Dunn,261 AD2d 940, 941 [1999], lv denied 94 NY2d 822 [1999]). Defendant'scontention that evidence of his postarrest silence was improperly admitted is notpreserved for our review (see People v Tarbell, 167 AD2d 902, 902 [1990],lv denied 77 NY2d 883 [1991]). In any event, "[a]though improper, theunsolicited reference to defendant's invocation of the right to [remain silent] does notconstitute a 'pervasive pattern of misconduct so egregious as to deprive defendant of afair trial' " (People v Beers, 302 AD2d 898, 899 [2003], lv denied 99NY2d 652 [2003]). Viewing the evidence in light of the elements of the crimes ascharged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that theverdict is against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]).[*2]
Defendant further contends that his SixthAmendment right to confront his accusers was violated by the admission in evidence oftestimony concerning a latent fingerprint that was processed and photographed by atechnician who did not testify at trial (see generally Crawford v Washington, 541US 36, 50-54 [2004]). We reject that contention. The technician who processed andphotographed the fingerprint did not compare the latent print to the fingerprints ofdefendant or any other suspect. Thus, the technician's findings were not testimonialbecause the latent fingerprint, "standing alone, shed[s] no light on the guilt of theaccused in the absence of an expert's opinion that the [latent fingerprint] match[es] aknown sample" (People vRawlins, 10 NY3d 136, 159 [2008]; see generally Williams v Illinois,567 US —, —, 132 S Ct 2221, 2243-2244 [2012]; People v Pealer, 20 NY3d447, 455 [2013]). Moreover, the analyst who determined that the latent printmatched one of defendant's fingerprints in fact testified at trial and was available forcross-examination. Therefore, defendant's right to confront witnesses against him wasnot violated (see Rawlins, 10 NY3d at 159; People v Hamilton, 66 AD3d 921, 922 [2009], lvdenied 13 NY3d 907 [2009]).
Defendant contends that he was denied the right to effective assistance of counselbecause defense counsel failed to make a detailed motion for a trial order of dismissal atthe close of the People's proof and failed to renew the motion at the close of defendant'sproof. We reject that contention. Defendant failed to demonstrate that such a motionwould have been meritorious, and "there is no denial of effective assistance based on thefailure to 'make a motion or argument that has little or no chance of success' " (People v Crump, 77 AD3d1335, 1336 [2010], lv denied 16 NY3d 857 [2011], quoting People v Stultz, 2 NY3d277, 287 [2004], rearg denied 3 NY3d 702 [2004]).
Defendant further contends that he was denied a fair trial based on prosecutorialmisconduct during summation. Defendant's contention is preserved for our review onlyin part, and in any event we conclude that "[a]ny improprieties were not so pervasive oregregious as to deprive defendant of a fair trial" (People v Caldwell, 98 AD3d 1272, 1273 [2012], lvdenied 20 NY3d 985 [2012] [internal quotation marks omitted]). Additionally, weconclude that the sentence is not unduly harsh or severe.
Finally, defendant correctly contends that the uniform sentence and commitmentsheet incorrectly recites that he was convicted as a second felony offender rather than asa second felony drug offender (see Penal Law § 70.71 [1] [b]), and theuniform sentence and commitment sheet must therefore be modified to correct theclerical error (see People vVasavada, 93 AD3d 893, 894 [2012], lv denied 19 NY3d 978 [2012];see generally People vDombrowski, 94 AD3d 1416, 1417 [2012], lv denied 19 NY3d 959[2012]). Present—Centra, J.P., Fahey, Carni and Sconiers, JJ.