| People v Johnson |
| 2014 NY Slip Op 00749 [114 AD3d 1132] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vMaurice Johnson, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D.Valentino, J.), rendered June 12, 2008. The judgment convicted defendant, upon anonjury verdict, of criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a nonjuryverdict, of criminal possession of a weapon in the second degree (Penal Law §265.03 [3]). Contrary to defendant's contention, a Darden hearing wasunnecessary to establish probable cause for his arrest because "there was sufficientevidence at the suppression hearing to establish probable cause for [the] arrestindependent of the [confidential informant's] statements" (People v Anderson, 104 AD3d968, 971 [2013], lv denied 21 NY3d 1013 [2013]; see People v McCullough, 104AD3d 1343, 1344 [2013], lv denied 21 NY3d 1017 [2013]). Two policeofficers testified that they observed the muffler dragging from the vehicle in whichdefendant was a passenger, which justified their stop of the vehicle (see People vRobinson, 97 NY2d 341, 349 [2001]; People v Binion, 100 AD3d 1514, 1515 [2012], lvdenied 21 NY3d 911 [2013]). Within seconds after defendant exited the vehicle, oneof the officers observed a gun in plain view on the floor of the passenger side wheredefendant had been seated, which provided probable cause for defendant's arrest (seePeople v Coley, 286 AD2d 963, 964 [2001], lv denied 97 NY2d 728[2002]).
We reject defendant's contention that he was denied the right to counsel whenSupreme Court refused to relieve defendant's assigned counsel and to assign new counselbefore trial. "Throughout the[ ] proceedings, defendant had four separate attorneysassigned to represent him. He was not satisfied with any of them and sought to have eachreplaced. The court properly denied defendant's request to appoint a fifth attorneyinasmuch as defendant did not present good cause for a substitution of counsel" (People v DePonceau, 96 AD3d1345, 1346 [2012], lv denied 19 NY3d 1025 [2012]). As he haddone with his three previous attorneys, defendant raised only general complaints abouthis fourth assigned attorney, and therefore failed to "make specific factual allegations ofserious complaints about counsel" sufficient to trigger the requisite minimal inquiry (People v Porto, 16 NY3d93, 99-100 [2010]).[*2]
Inasmuch as the court "conducted the requisitesearching inquiry to insure that defendant's request to proceed pro se was accompaniedby a knowing, voluntary and intelligent waiver of the right to counsel"(DePonceau, 96 AD3d at 1347 [internal quotation marks omitted]), we rejectdefendant's further contention that he was denied the right to counsel when he proceededpro se at his suppression and predicate felony hearings, and at sentencing. Whendefendant, " 'who was not totally unfamiliar with criminal procedure, so determinedlyand so unequivocally insisted on rejecting counsel and proceeding [pro se], the court hadno recourse but to permit him to do so' " (id. at 1346, quoting People vMedina, 44 NY2d 199, 209 [1978]).
Defendant failed to preserve for our review his contention that the court's adverseinference charge "was an insufficient sanction for the . . . loss of[photographs of the gun and the exterior of the vehicle] by the police," inasmuch as hemade no request for any other remedy after the court agreed to give the adverse inferencecharge (People vAnonymous, 38 AD3d 438, 439 [2007], lv denied 8 NY3d 981 [2007]).We decline to exercise our power to review defendant's contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Contrary todefendant's further contention, defense counsel was not ineffective in failing to request amore severe sanction. Indeed, "[i]t is well settled that defense counsel cannot be deemedineffective for failing to 'make a motion or argument that has little or no chance ofsuccess' " (People vNoguel, 93 AD3d 1319, 1320 [2012], lv denied 19 NY3d 965 [2012],quoting People v Stultz, 2NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]).Present—Scudder, P.J., Smith, Centra, Carni and Whalen, JJ.