| People v Hogan |
| 2014 NY Slip Op 04291 [118 AD3d 1263] |
| June 13, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMarcus D. Hogan, Appellant. |
Shirley A. Gorman, Brockport, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D.Valentino, J.), rendered August 4, 2006. The judgment convicted defendant, after anonjury trial, of criminal possession of a controlled substance in the third degree andcriminal possession of a controlled substance in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment that convicted him following anonjury trial of criminal possession of a controlled substance in the third degree (PenalLaw § 220.16 [1]) and criminal possession of a controlled substance in thefifth degree (§ 220.06 [5]). We reject defendant's contention that thepresumption of knowing possession set forth in Penal Law § 220.25 (2) wasinapplicable because he was not in proximity to the packaged and unpackaged drugs anddrug trafficking paraphernalia that were found in open view in the kitchen/living roomarea of the small apartment in question (see People v Snow, 225 AD2d 1031,1031-1032 [1996]). Upon entering the apartment, the police observed defendant runningfrom the kitchen/living room area not more than 15 feet from where the drugs and drugtrafficking paraphernalia were found. Although defendant was apprehended in a hallwaybathroom of the apartment, "proximity is not limited to the same room" (id. at1032; see People v Pressley, 294 AD2d 886, 887 [2002], lv denied 98NY2d 712 [2002]; People v Miranda, 220 AD2d 218, 218 [1995], lv denied87 NY2d 849 [1995]). Viewing the evidence in light of the elements of the crimes inthis nonjury trial (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). We reject defendant's further contention that he was denied effective assistanceof counsel based on his attorney's failure to notify him of his right to testify before thegrand jury (see People vNobles, 29 AD3d 429, 430 [2006], lv denied 7 NY3d 792 [2006]).Defendant also was not denied effective assistance of counsel by his attorney's failure tomake a timely motion to dismiss the indictment based on the People's alleged violation ofCPL 190.50 (5) (a). That failure, without more, is insufficient to demonstrate ineffectiveassistance, "particularly where defendant failed to demonstrate an absence of strategic orlegitimate reasons for counsel's failure to pursue this course of action" (People v Wright, 5 AD3d873, 874 [2004], lv denied 3 NY3d 651 [2004]; see People v Hibbard, 27AD3d 1196, 1196-1197 [2006], lv denied 7 NY3d 790 [2006]).Present—Scudder, P.J., Smith, Carni, Lindley and Whalen, JJ.