| People v Holland |
| 2015 NY Slip Op 02627 [126 AD3d 1514] |
| March 27, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v John E. Holland, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Jeremy V. Murray of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered March 8, 2013. The judgment convicted defendant, upon a nonjury verdict, ofcriminal possession of a controlled substance in the fifth degree and criminally usingdrug paraphernalia in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him following anonjury trial of criminal possession of a controlled substance in the fifth degree (PenalLaw § 220.06 [5]) and criminally using drug paraphernalia in the seconddegree (§ 220.50 [3]). Defendant failed to preserve for our review hiscontention that County Court should have suppressed his statement to the police asinvoluntary based upon alleged coercion by the police inasmuch as he did not move tosuppress the statement on that ground (see People v Lewis, 124 AD3d 1389, 1390 [2015]; People v Woodard, 96 AD3d1619, 1620, [2012], lv denied 19 NY3d 1030 [2012]). In any event, we notethat "[t]here is no indication in the record that defendant's statement[ ] [was] notvoluntarily made" (People vTopolski, 28 AD3d 1159, 1160 [2006], lv dismissed 6 NY3d 898[2006], lv denied 7 NY3d 764 [2006], reconsideration denied 7 NY3d795 [2006]; see People vKirton, 36 AD3d 1011, 1012 [2007], lv denied 8 NY3d 947 [2007]).Contrary to the further contention of defendant, "[t]he record of the suppression hearingsupports the court's determination that defendant knowingly, voluntarily and intelligentlywaived his Miranda rights before making the statement" (People v Irvin, 111 AD3d1294, 1295 [2013], lv denied 24 NY3d 1044 [2014]; see People v Sanders, 74 AD3d1896, 1896 [2010]).
Defendant further contends that the evidence is legally insufficient to establish hisconstructive possession of cocaine and drug paraphernalia found in the bedroom of hisgirlfriend's residence. We reject that contention (see People v Patterson, 13 AD3d 1138, 1139 [2004], lvdenied 4 NY3d 801 [2005]; see generally People v Bleakley, 69 NY2d 490,495 [1987]). A detective testified that defendant matched the description of a man whowas reportedly selling cocaine out of the residence and, upon executing a search warrantfor the residence, the police found cocaine and drug paraphernalia in a dresser drawerthat also contained defendant's New York State benefit card and a prescription in hisname. Further, defendant's girlfriend testified that defendant spent three or four nights aweek at her home, and that he kept clothing and shoes in her bedroom. The evidence isthus legally sufficient to establish defendant's constructive possession of the cocaine (see People v Holley, 67 AD3d1438, 1439 [2009], lv denied 14 NY3d 801 [2010]; People v Dorney, 35 AD3d1032, 1033-1034 [2006], lv denied 8 NY3d 921 [2007]; People vLopez, 112 AD2d 739, 739-740 [1985]). In addition, viewing the evidence in lightof the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see People v Archie, 78 AD3d1560, 1561-1562 [2010], lv denied 16 NY3d 856 [2011]; Patterson,13 AD3d at 1139; see generally Bleakley, 69 NY2d at 495).
We also reject defendant's contention that he was denied effective assistance ofcounsel. [*2]It is well settled that, "[t]o prevail on a claimof ineffective assistance of counsel, it is incumbent on defendant to demonstrate theabsence of strategic or other legitimate explanations" for defense counsel's allegedlydeficient conduct (People v Rivera, 71 NY2d 705, 709 [1988]; see People vBenevento, 91 NY2d 708, 712 [1998]), and defendant failed to meet that burden.Viewing the evidence, the law and the circumstances of this case, in totality and as of thetime of the representation, we conclude that defendant received meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]). Finally,the sentence is not unduly harsh or severe. Present—Centra, J.P., Peradotto,Lindley and DeJoseph, JJ.