| People v DeJesus |
| 2014 NY Slip Op 04340 [118 AD3d 1340] |
| June 13, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jorge DeJesus, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered October 19, 2012. The judgment convicted defendant, upon a nonjuryverdict, of criminal possession of a weapon in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjuryverdict of two counts of criminal possession of a weapon in the second degree (PenalLaw § 265.03 [3]). Supreme Court properly refused to suppress defendant'sstatements and the weapons seized from the basement of his mother's home. Contrary todefendant's contention, the People established that defendant's mother voluntarilyconsented to the search of her home (see People v May, 100 AD3d 1411, 1412 [2012], lvdenied 20 NY3d 1063 [2013]; People v McCray, 96 AD3d 1480, 1481 [2012], lvdenied 19 NY3d 1104 [2012]). Defendant's remaining contentions regarding thesuppression hearing are not preserved for our review (see CPL 470.05 [2]), andwe decline to exercise our power to review those contentions as a matter of discretion inthe interest of justice (see CPL 470.15 [6] [a]). "To the extent that defendantcontends that defense counsel was ineffective for failing to raise [those issues] at thesuppression hearing, we reject that contention because [t]here can be no denial ofeffective assistance of . . . counsel arising from [defense] counsel's failure tomake a motion or argument that has little or no chance of success" (People v Watson, 90 AD3d1666, 1667 [2011], lv denied 19 NY3d 868 [2012] [internal quotation marksomitted]).
Defendant next contends that the verdict is against the weight of the evidencebecause he had only temporary innocent possession of the weapons. We reject thatcontention (see People vHicks, 110 AD3d 1488, 1488 [2013], lv denied 22 NY3d 1156 [2014]).A person may be found to have had temporary and lawful possession of a weapon if, forexample, "he found the weapon shortly before his possession of it was discovered and heintended to turn it over to the authorities" (People v Almodovar, 62 NY2d 126,130 [1984]). The court here rejected that defense inasmuch as defendant did not turnover the weapons to the police despite the opportunity to do so. Viewing the evidence inlight of the elements of the crime in this nonjury trial (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]). Finally,the sentence is not unduly harsh or [*2]severe.Present—Scudder, P.J., Centra, Carni, Lindley and DeJoseph, JJ.