| People v Parson |
| 2014 NY Slip Op 08203 [122 AD3d 1441] |
| November 21, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Parson, Jr., Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Diane S. Meldrim of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.),rendered August 28, 2012. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his guiltyplea of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]). We reject defendant's contention that County Court erred inrefusing to suppress his statements and evidence seized by the police from his vehicle.The court credited the police officer's testimony that, as he approached defendant'svehicle from the opposite direction in the late evening, he observed that the vehicle had acracked windshield and an object hanging from the rearview mirror. The officer made aU-turn and stopped defendant's vehicle. When defendant rolled down the window, theofficer smelled burnt marihuana and asked defendant if he had been using marihuana.Defendant responded yes, and the officer then asked defendant to exit the vehicle. Theofficer searched both defendant and the vehicle and found marihuana on defendant'sperson and in the vehicle, and also found a weapon inside the vehicle. Contrary todefendant's contention, the officer properly stopped defendant's vehicle upon observingviolations of Vehicle and Traffic Law § 375 (22) and (30) (see People vRobinson, 97 NY2d 341, 349 [2001]; People v Dempsey, 79 AD3d 1776, 1777 [2010], lvdenied 16 NY3d 830 [2011]). We accord great weight to the court's determination" 'because of its ability to observe and assess the credibility of thewitnesses,' " and conclude that its findings should not be disturbed (People v Mejia, 64 AD3d1144, 1145 [2009], lv denied 13 NY3d 861 [2009]; see People v Daniels, 117AD3d 1573, 1575 [2014]; see generally People v Prochilo, 41 NY2d 759,761 [1977]). Defendant's contentions concerning the propriety of the search of his personand his vehicle are not preserved for our review (see CPL 470.05 [2]; People v Adger, 83 AD3d1590, 1591 [2011], lv denied 17 NY3d 857 [2011]), and we decline toexercise our power to review them as a matter of discretion in the interest of justice(see CPL 470.15 [3] [c]).
Defendant next contends that he was denied effective assistance of counsel becausedefense counsel failed to cross-examine the police witness at the suppression hearingwith a vehicle inventory form that purportedly showed that there was no damage to thevehicle. Defendant contends that such evidence supported his assertion that, contrary tothe officer's testimony, the windshield was not cracked. The vehicle inventory form is nota part of the record on appeal, and therefore defendant's contention must be raised in amotion pursuant to CPL article 440 (see People v Dizak, 93 AD3d 1182, 1185 [2012], lvdenied 19 NY3d 972 [2012], reconsideration denied 20 NY3d 932[2012]).
We disagree with our dissenting colleague that defendant was denied effectiveassistance of counsel based on defense counsel's failure to advance a more vigorouschallenge to the officer's testimony regarding his reasons for stopping defendant'svehicle. Although defendant's [*2]contention survives hisguilty plea to the extent that he contends that his plea was infected by the allegedlyineffective assistance (seePeople v Neil, 112 AD3d 1335, 1336 [2013], lv denied 23 NY3d 1040[2014]; People v Brown, 63AD3d 1650, 1651 [2009]), we conclude that it lacks merit. "In the context of a guiltyplea, a defendant has been afforded meaningful representation when he or she receivesan advantageous plea and nothing in the record casts doubt on the apparent effectivenessof counsel" (People v Ford, 86 NY2d 397, 404 [1995]). Here, defendant receivedan advantageous plea inasmuch as he received the minimum sentence for his conviction.Defense counsel cross-examined the officer about the object that was hanging from thevehicle's mirror, and asked the officer if the lighting conditions were "enough" to "beable to see the cracked windshield." In addition, defense counsel made a persuasiveargument at the conclusion of the suppression hearing that the officer's testimonyregarding the cracked windshield was not credible and that there "was really no probablecause for the stop of that vehicle." The fact that the court did not agree with defensecounsel's assessment of the credibility of the officer does not amount to ineffectiveassistance of counsel. Indeed, " '[s]peculation that a more vigorouscross-examination might have [undermined the credibility of a witness] does notestablish ineffectiveness of counsel' " (People v Williams, 110 AD3d 1458, 1459-1460 [2013],lv denied 22 NY3d 1160 [2014]).
All concur except Fahey, J., who dissents and votes to reverse in accordance with thefollowing memorandum.
Fahey, J. (dissenting). I respectfully dissent because in my view defendant wasdeprived of his right to effective assistance of counsel. Initially, defendant contends thathe was denied effective assistance of counsel inasmuch as defense counsel did notintroduce in evidence a vehicle inventory form reflecting that the windshield of thevehicle defendant was driving at the time he was stopped by the police was undamaged.The vehicle inventory form directly contradicts the testimony of the police officer whostopped that vehicle inasmuch as that officer testified at the suppression hearing that hestopped the car because of a "pretty big" crack that "covered most of the windshield."Notably, the vehicle inventory form is attached to defendant's appellate brief and issigned by the testifying police officer. It indicates that there was "no damage" to thevehicle, contradicting the officer's testimony. Inasmuch as the vehicle inventory form isoutside the record on appeal, however, I agree with the majority that defendant'scontention concerning the vehicle inventory form is properly the subject of a motionpursuant to CPL article 440 (seePeople v Dizak, 93 AD3d 1182, 1185 [2012], lv denied 19 NY3d 972[2012], reconsideration denied 20 NY3d 932 [2012]).
I further conclude, however, that defendant was deprived of meaningfulrepresentation by defense counsel's deficient performance at the suppression hearing. Inmy view, defense counsel did not adequately explore the circumstances of the subjecttraffic stop. In particular, I note that he did not inquire in detail concerning the lightingconditions present at the time of the stop; the proximity of the vehicle defendant wasdriving to a streetlight; the weather at the time of the traffic stop; or the location of thevehicle defendant was driving in relation to the officer's location when he allegedlyobserved the crack in the windshield. I thus conclude that defense counsel's deficientcross-examination was tantamount to a failure to supply County Court with a rationale togrant suppression (see People vClermont, 22 NY3d 931, 933-934 [2013]; cf. People v Mobley, 120 AD3d 916, 919 [2014]), and thatdefendant was denied effective assistance of counsel thereby (see generally People vBaldi, 54 NY2d 137, 147 [1981]). Consequently, I would reverse the judgment,vacate the plea and remit the matter to County Court for further proceedings on theindictment. Present—Centra, J.P., Fahey, Carni, Sconiers and Valentino, JJ.