| People v Hicks |
| 2013 NY Slip Op 06484 [110 AD3d 1488] |
| October 4, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vRobert L. Hicks, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia,A.J.), rendered July 19, 2011. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon 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 ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]),defendant contends that the verdict is against the weight of the evidence because he hadonly temporary innocent possession of the weapon. We reject that contention. Although aperson may be found to have had temporary and lawful possession of a weapon if he orshe took the weapon from an assailant in the course of a fight (see People vAlmodovar, 62 NY2d 126, 130 [1984]), here the jury reasonably could have foundthat defendant, after taking the gun at issue from another person, retained possession of itdespite the opportunity to turn it over to lawful authorities (see People v Snyder,73 NY2d 900, 901-902 [1989]; see also People v Gonzalez, 262 AD2d 1061,1061-1062 [1999], lv denied 93 NY2d 1018 [1999]). Specifically, the recordestablishes that defendant fled from the police on a bicycle and disposed of the gun in agarbage can. Defendant's purposeful avoidance of the police is "utterly at odds with [his]claim of innocent possession . . . temporarily and incidentally [resulting]from . . . disarming a wrongful possessor" (Snyder, 73 NY2d at 902[internal quotation marks omitted]; see Gonzalez, 262 AD2d at 1062). Thus,viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Contrary to defendant's contention, "defense counsel's failure to make a specificmotion for a trial order of dismissal at the close of the People's case [does] not constituteineffective assistance of counsel, inasmuch as any such motion would have had nochance of success" (People vHorton, 79 AD3d 1614, 1616 [2010], lv denied 16 NY3d 859 [2011];see generally People vStultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]).Indeed, we note that defendant does not contend on appeal that the evidence at trial islegally insufficient to support the conviction. Defendant also failed to demonstrate a lackof strategic or other legitimate explanations for defense counsel's [*2]alleged ineffectiveness in failing to request a charge on thelesser included offense of criminal possession of a weapon in the fourth degree (PenalLaw § 265.01 [1]), or in failing to request a missing witness charge (see Peoplev Benevento, 91 NY2d 708, 712-713 [1998]). Further, "[a]bsent proof that suchwitness would have provided noncumulative testimony which was favorable to [theprosecution], there was no basis for such a charge" (People v Myers, 87 AD3d 826, 828 [2011], lvdenied 17 NY3d 954 [2011] [internal quotation marks omitted]). We have reviewedthe remaining alleged deficiencies in defense counsel's performance and conclude thatdefendant received meaningful representation (see generally People v Baldi, 54NY2d 137, 147 [1981]).
We reject defendant's further contention that the photo array was unduly suggestive(see generally People v Chipp, 75 NY2d 327, 335 [1990], cert denied498 US 833 [1990]). The individuals depicted in the photo array were "sufficientlysimilar in appearance so that the viewer's attention [was] not drawn to any onephotograph in such a way as to indicate that the police were urging a particular selection"(People v Quinones, 5AD3d 1093, 1093 [2004], lv denied 3 NY3d 646 [2004]; see Chipp,75 NY2d at 336). Although we conclude upon our review of a copy of the photo arraythat defendant appears to have a darker skin tone than the other African-American malesdepicted therein, we note that the witnesses were instructed that the photographs in thearray "may not depict the true complexion of a person." Moreover, "differences in skintone alone will not render a lineup unduly suggestive" (People v Fewell, 43 AD3d1293, 1294 [2007], lv denied 9 NY3d 1033 [2008], reconsiderationdenied 10 NY3d 862 [2008] [internal quotation marks omitted]; seeQuinones, 5 AD3d at 1093). Finally, the sentence is not unduly harsh or severe.Present—Smith, J.P., Fahey, Sconiers, Valentino and Whalen, JJ.