| People v Smith |
| 2014 NY Slip Op 04666 [118 AD3d 1492] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vLabradford Smith, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered October 14, 2009. The judgment convicted defendant, upon a juryverdict, of criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]). We reject defendant's contention that he received ineffectiveassistance of counsel. Defense counsel's failure to request a Wade hearing did notconstitute ineffective assistance inasmuch as "[t]here can be no denial of effectiveassistance of trial counsel arising from counsel's failure to 'make a motion or argumentthat has little or no chance of success' " (People v Caban, 5 NY3d 143, 152 [2005]; see People v Sebring, 111AD3d 1346, 1346-1347 [2013], lv denied 22 NY3d 1159 [2014]; Peoplev Hughes, 148 AD2d 1002, 1002 [1989], lv denied 74 NY2d 741 [1989],reconsideration denied 74 NY2d 848 [1989]). Defense counsel's failure to objectto alleged Molineux evidence and to request a limiting instruction "was a tacticaldecision" and did not constitute ineffective assistance (People v Taylor, 2 AD3d1306, 1308 [2003], lv denied 2 NY3d 746 [2004]). Inasmuch as one of theeyewitnesses knew defendant, defense counsel was not ineffective in failing to call anexpert witness to testify about the reliability of eyewitness identifications (see People v Faison, 113 AD3d1135, 1136 [2014]; see alsoPeople v Stanley, 108 AD3d 1129, 1130-1131 [2013], lv denied 22NY3d 959 [2013]; People vMcDonald, 79 AD3d 771, 772 [2010], lv denied 16 NY3d 861 [2011]).Defense counsel's failure to request a missing witness charge did not constituteineffective assistance of counsel. There was no indication that the witness would haveprovided noncumulative testimony favorable to the People (see People v Hicks, 110 AD3d1488, 1489 [2013], lv denied 22 NY3d 1156 [2014]; People v Myers, 87 AD3d826, 828 [2011], lv denied 17 NY3d 954 [2011]; see generally People vSavinon, 100 NY2d 192, 197 [2003]).
Contrary to defendant's contention, the verdict is not against the weight of theevidence. Viewing the evidence in light of the elements of the crime as charged to thejury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that "the jury was justified infinding the defendant guilty beyond a reasonable doubt" (id. at 348). We furtherconclude that Supreme Court did not abuse its discretion in determining that defendantwas ineligible for youthful offender status [*2]inasmuchas there were no "mitigating circumstances that bear directly upon the manner in whichthe crime was committed" (CPL 720.10 [3] [i]; see People v Parker, 67 AD3d 1405, 1406 [2009], lvdenied 15 NY3d 755 [2010]; see also People v Pulvino, 115 AD3d 1220, 1223 [2014]).Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P., Centra,Carni, Whalen and DeJoseph, JJ.