| People v Fox |
| 2015 NY Slip Op 00034 [124 AD3d 1252] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJavell Fox, Appellant. |
Peter J. Digiorgio, Jr., Utica, for defendant-appellant.
Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.),rendered May 21, 2012. The judgment convicted defendant, after a nonjury trial, ofcriminal possession of a controlled substance in the third degree, criminal possession of acontrolled substance in the fourth degree, resisting arrest and harassment in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjuryverdict of, inter alia, criminal possession of a controlled substance in the third degree(Penal Law § 220.16 [1]). The charges arose from an incident involving thetraffic stop by a police officer of a vehicle in which defendant was a passenger. Duringthe stop, defendant was instructed to exit the vehicle and, while being frisked by a policeofficer, defendant pushed him and fled. The police officer who stopped the vehicle andan assisting police officer captured defendant and arrested him. After the arrest, thepolice officers found drugs on the ground where defendant had been standing and underthe backseat of the patrol car where defendant had been sitting.
Defendant contends that County Court erred in denying his motion to suppress theabove physical evidence inasmuch as the initial frisk was unlawful, which renders thesubsequent arrest unlawful and any evidence discovered thereafter by the policeinadmissible. We reject that contention. Even assuming, arguendo, that the frisk wasunlawful, we conclude that defendant's act of pushing the frisking officer was not"spontaneous and precipitated by the illegality . . . [but] was a calculated actnot provoked by the unlawful police activity and thus attenuated from it" (People vWilkerson, 64 NY2d 749, 750 [1984]; see People v Stone, 197 AD2d 356,356 [1993], lv denied 82 NY2d 904 [1993]). We therefore conclude that therewas probable cause for defendant's subsequent arrest for harassment of the friskingofficer (cf. People v Felton, 78 NY2d 1063, 1064-1065 [1991]). Consequently,the drugs seized from defendant's person and the backseat of the patrol car werediscovered incident to a lawful arrest (see People v Cooper, 85 AD3d 1594, 1595 [2011],affd 19 NY3d 501 [2012]).
We reject defendant's further contention that the evidence is legally insufficient tosupport the conviction for harassment and resisting arrest. Viewing the evidence in thelight most favorable to the People (see generally People v Khan, 18 NY3d 535, 541 [2012]),we conclude that there is a "valid line of reasoning and permissible inferences" that couldrationally lead the court to determine that defendant harassed the arresting officer andresisted arrest (People v Bleakley, 69 NY2d 490, 495 [1987]).
We reject defendant's contention that he was denied effective assistance of counsel.Initially, we conclude that defendant is not entitled to a reconstruction hearing todetermine the contents of a conversation between the court and defense counsel thatallegedly concerned privileged attorney-client matters. The court placed a summary ofthe conversation on the record, and defense counsel agreed to that summary. Weconclude that defense counsel was not [*2]ineffective forhaving such a conversation with the court inasmuch as the purpose of the conversationwas to ensure that defense counsel did not "breach . . . any recognizedprofessional duty" to either defendant or the court (People v Andrades, 4 NY3d 355, 362 [2005]). With respectto the remaining grounds that defendant raises in support of his contention of ineffectiveassistance of counsel, we conclude that "the evidence, the law, and the circumstances of[this] particular case, viewed in totality and as of the time of the representation, revealthat the attorney provided meaningful representation" (People v Baldi, 54 NY2d137, 147 [1981]; see People vHall, 106 AD3d 1513, 1514 [2013], lv denied 22 NY3d 956 [2013]). Tothe extent that defendant's claims of ineffective assistance of counsel "involve mattersoutside the record on appeal . . . [they] must be raised by way of a motionpursuant to CPL 440.10" (People v Brown, 120 AD3d 1545, 1546 [2014]; see People v Reed, 115 AD3d1334, 1337 [2014], lv denied 23 NY3d 1024 [2014]).
Finally, defendant's sentence is not unduly harsh or severe. Present—Centra,J.P., Fahey, Sconiers, Whalen and DeJoseph, JJ.