| People v Johnson |
| 2014 NY Slip Op 04676 [118 AD3d 1502] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJohn G. Johnson, Jr., Appellant. |
Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Thomas R. Morse, A.J.),rendered February 11, 2010. The judgment convicted defendant, upon a jury verdict, ofcriminal 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 defense counsel wasineffective for failing to move to suppress the handgun and cell phone that defendantdropped when he was fleeing from the police and for failing to object to the policeofficers' testimony at trial that they were assigned to a robbery detail on the night inquestion. Defendant failed to demonstrate that the motion and objection, " 'ifmade, would have been successful and that defense counsel's failure to make that motion[and objection] deprived him of meaningful representation' " (People v Bassett, 55 AD3d1434, 1437-1438 [2008], lv denied 11 NY3d 922 [2009]; see People v Bedell, 114 AD3d1153, 1153 [2014]). Viewing the evidence, the law and the circumstances of thiscase in totality and as of the time of the representation, we conclude that defense counselprovided meaningful representation (see generally People v Baldi, 54 NY2d 137,147 [1981]).
Contrary to defendant's further contention, County Court did not err in failing toprovide a moral certainty charge, inasmuch as there was both direct and circumstantialevidence of guilt (see People vAllen, 1 AD3d 947, 948 [2003], lv denied 1 NY3d 594 [2004];People v Goncalves, 283 AD2d 1005, 1005-1006 [2001], lv denied 96NY2d 918 [2001]). We reject defendant's contention that the court abused its discretionin denying his motion for a mistrial based on the hearsay testimony of a prosecutionwitness. "[T]he decision to grant or deny a motion for a mistrial is within the trial court'sdiscretion" (People v Ortiz, 54 NY2d 288, 292 [1981]). Here, the court did notabuse its discretion in denying defendant's motion for a mistrial and instead providing thejury with a strong curative instruction directing them to disregard the impropertestimony, which "the jury is presumed to have followed" (People v DeJesus, 110 AD3d1480, 1482 [2013], lv denied 22 NY3d 1155 [2014]).
[*2] Defendant failed to seek a ruling on that part of hisomnibus motion seeking to suppress identification testimony on the ground that thepolice were required to obtain a warrant before searching the content of his cell phone,which content was used to obtain a photograph of defendant for inclusion in a photoarray, and we further note that he did not object to the admission of the identificationtestimony at trial on that ground. Defendant therefore has abandoned any contention thatthe identification testimony should have been suppressed on that ground (see People v Adams, 90 AD3d1508, 1509 [2011], lv denied 18 NY3d 954 [2012]). We reject defendant'scontention that his Confrontation Clause rights were violated by an officer's testimonyregarding the photographs contained in the cell phone, inasmuch as those photographswere not " 'procured with a primary purpose of creating an out-of-court substitutefor trial testimony' " (People v Pealer, 20 NY3d 447, 453 [2013], cert denied571 US &mdash, 134 S Ct 105 [2013], quoting Michigan v Bryant, 562 US&mdash, &mdash, 131 S Ct 1143, 1155 [2011]). Defendant failed to preserve for ourreview his further contentions that the court erred in failing to issue a limiting instructionwith respect to the officers' testimony that they were assigned to a robbery detail on thenight in question (see People vWilliams, 107 AD3d 1516, 1516 [2013], lv denied 21 NY3d 1047[2013]), and that he was denied a fair trial based on prosecutorial misconduct onsummation (see People vIrvin, 111 AD3d 1294, 1296 [2013]). We decline to exercise our power toreview those contentions as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Finally, defendant's contention that the court misapprehendedits sentencing discretion with respect to the period of postrelease supervision isunsupported by the record, and the sentence is not unduly harsh or severe.Present—Smith, J.P., Fahey, Peradotto, Sconiers and Valentino, JJ.