| People v Blocker |
| 2015 NY Slip Op 07121 [132 AD3d 1287] |
| October 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMarlo J. Blocker, Also Known as Marlow, Appellant. |
Shirley A. Gorman, Brockport, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered January 13, 2010. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree (four counts), criminal possessionof a weapon in the third degree (two counts) and a traffic infraction.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of four counts of criminal possession of a weapon in the second degree (PenalLaw § 265.03 [1] [b]; [3]), two counts of criminal possession of a weaponin the third degree (§ 265.02 [1]), and a traffic infraction. We rejectdefendant's contention that he was denied effective assistance of counsel. Defendantfailed to demonstrate that the alleged deficiencies in the pretrial suppression motioncompromised his defense or his right to a fair trial, inasmuch as County Court addressedhis challenge to the legality of the search of his vehicle (see People v Hobot, 84NY2d 1021, 1024 [1995]; People v Clark, 6 AD3d 1066, 1067 [2004], lvdenied 3 NY3d 638 [2004]). Defendant's contention that counsel was ineffective infailing to move to sever his trial from that of his codefendant is based on matters outsidethe record on appeal and therefore must be raised in a motion pursuant to CPL 440.10(see People v Fuentes, 52AD3d 1297, 1300 [2008], lv denied 11 NY3d 736 [2008]). Similarly, amotion pursuant to CPL 440.10 is the proper procedural vehicle for defendant to raise hiscontention that counsel failed to conduct an adequate investigation (see People v Conway, 118AD3d 1290, 1291 [2014], lv denied 9 NY3d 990 [2007]). Further, althoughcounsel failed to object to comments by the prosecutor that the People concede supportedan improper "safe streets" argument, "it cannot be said that, viewing counsel'srepresentation in totality, such error deprived defendant of meaningful representation"(People v Brown, 70 AD3d1302, 1304 [2010], affd 17 NY3d 742 [2011]; see People v Baldi, 54NY2d 137, 147 [1981]).
Defendant failed to preserve for our review his contention that the warrantless searchof his vehicle constituted an improper inventory search (see CPL 470.05 [2]; People v Redden, 27 AD3d1173, 1174 [2006], lv denied 7 NY3d 793 [2006]), and we decline toexercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). We reject defendant's further contention that thecourt erred in charging the jury on accessorial liability (see People v Rosario, 277AD2d 943, 944 [2000], affd 96 NY2d 857 [2001]).
Finally, viewing the evidence in light of the elements of the crimes of criminalpossession of a weapon in the second and third degrees as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The jurywas entitled to reject the evidence that the weapons recovered from the vehicle werepossessed solely by one of the codefendants, and to find, based upon the automobilepresumption (see Penal Law § 220.25 [1]), that defendantknowingly possessed those weapons (see People v Washington, 50 AD3d 1539, 1539 [2008],lv denied [*2]11 NY3d 742 [2008]). The jury wasalso entitled to find, based upon the testimony of the firearms examiner, that thesawed-off shotgun recovered from the vehicle constituted a "firearm" under Penal Law§ 265.00 (3) (d) (see People v Tillery, 60 AD3d 1203, 1205-1206 [2009],lv denied 12 NY3d 860 [2009]). Present—Centra, J.P., Peradotto, Carni,Whalen and DeJoseph, JJ.