| People v Faison |
| 2014 NY Slip Op 00054 [113 AD3d 1135] |
| January 3, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Earl Faison, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered February 10, 2010. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jurytrial of two counts of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [1] [b]; [3]). Defendant made only a general motion for a trial order ofdismissal and thus failed to preserve for our review his contention that the evidence islegally insufficient to support the conviction (see People v Gray, 86 NY2d 10, 19[1995]). In any event, we conclude that defendant's contention lacks merit. According tothe testimony of two eyewitnesses, they were standing outside a house when a vehicledriven by defendant slowed as it passed by them on the street. Defendant rolled thewindow down, looked around, and then drove off. Moments later, defendant made aU-turn and, as the vehicle passed by the eyewitnesses a second time, his codefendant shotmultiple rounds from the passenger side of the vehicle. Thus, we conclude that there is avalid line of reasoning and permissible inferences to enable the jury to find thatdefendant shared his codefendant's intent and jointly possessed the weapon (see People v Velasquez, 44AD3d 412, 412 [2007], lv denied 9 NY3d 1040 [2008]; see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wefurther conclude that the verdict is not against the weight of the evidence (seegenerally Bleakley, 69 NY2d at 495).
Defendant further contends that the in-court identification of him by a prosecutionwitness was tainted by unduly suggestive circumstances, i.e., the fact that County Courtasked him to stand during the in-court identification. Even assuming, arguendo, thatdefendant's contention has merit, we conclude that any error is harmless (seegenerally People v Aquino, 191 AD2d 574, 574 [1993], lv denied 81 NY2d1069 [1993]).
We reject defendant's contention that he was denied effective assistance of counsel."There can be no denial of effective assistance of trial counsel arising from counsel'sfailure to[*2]'make a motion or argument that has little orno chance of success' " (Peoplev Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004]). Contrary todefendant's contention, testimony regarding the location in which the police found theonly projectile recovered from the scene would have been admissible over defensecounsel's objection "as background material that completed the narrative of the episode"(People v Strong, 234 AD2d 990, 990 [1996], lv denied 89 NY2d 1016[1997]). Also contrary to defendant's contention, expert testimony concerning thereliability of eyewitness identifications would have been inappropriate in this casebecause defendant was a person known to one of the eyewitnesses (see People v Abney, 13 NY3d251, 268-269 [2009]; seealso People v LeGrand, 8 NY3d 449, 459 [2007]). We conclude that the record,viewed as a whole, demonstrates that defense counsel provided meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant failed to preserve for our review his contention that the court atsentencing erroneously considered crimes of which he was not convicted, and we declineto exercise our power to review that contention as a matter of discretion in the interest ofjustice (see generally People vHirsh, 106 AD3d 1546, 1548 [2013]). Finally, we conclude that the sentence isnot unduly harsh or severe. Present—Centra, J.P., Peradotto, Carni, Lindley andValentino, JJ.