| People v Way |
| 2014 NY Slip Op 01823 [115 AD3d 558] |
| March 20, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Robert Way, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J., at suppressionmotion; Daniel McCullough, J., at jury trial and sentencing), rendered August 3, 2011,convicting defendant of criminal possession of a weapon in the third degree, andsentencing him, as a second felony offender, to a term of 2½ to 5 years,unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibilitydeterminations, including its resolution of alleged inconsistencies in the officers'testimony.
The court properly denied defendant's motion to suppress physical evidence, withoutgranting a hearing, because his motion papers did not raise an issue of fact as to probablecause for his arrest (see People v Mendoza, 82 NY2d 415 [1993]). Defendant'sassertion that he was "not engaged in any criminal activity at the time of, or immediatelyprior to his arrest" did not controvert the specific information that was provided by thePeople concerning the basis for the arrest. Defendant did not address these allegations orraise a factual dispute requiring a hearing (see e.g. People v Cartwright, 65 AD3d 973 [1st Dept2009], lv denied 13 NY3d 937 [2010]). In context, it was not even clear what, ifany, portion of the events leading up to defendant's arrest was intended to be addressedby the phrase "immediately prior to his arrest."
Defendant failed to preserve his claim that the court should have given the jury acircumstantial evidence charge, and we decline to review it in the interest of justice. Asan alternative holding, we find that no such charge was necessary, because the People'scase was not based entirely on circumstantial evidence. The fact that the jury was calledupon to draw inferences from the evidence did not require a circumstantial evidencecharge (see People v Roldan, 88 NY2d 826 [1996]; People v Daddona,81 NY2d 990 [1993]).
For similar reasons, we reject defendant's ineffective assistance of counsel claim. Thefact that counsel did not request a circumstantial evidence charge met an objectivestandard of [*2]reasonableness, and the absence of such acharge did not deprive defendant of a fair trial or affect the outcome (see People vBenevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466US 668 [1984]). Concur—Tom, J.P., Friedman, Manzanet-Daniels, Gische andClark, JJ.