| People v Velez |
| 2016 NY Slip Op 03027 [138 AD3d 1041] |
| April 20, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michelle Velez, Appellant. |
Lynn W. L. Fahey, New York, NY (Rashanda Sibley of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, AnnBordley, and Allison Ageyeva of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Ingram, J.), rendered September 6, 2012, convicting her of criminal possession of acontrolled substance in the fourth degree and criminal possession of marijuana in thefourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
While looking out of a second floor window of the Red Hook courthouse located at88 Visitation Place, Brooklyn, a New York City police detective observed marijuanaplants growing in a yard behind a residence adjacent to the courthouse. A search warrantwas obtained which authorized a search of "86 Visitation Place, yard and residence,Brooklyn, NY." Police executed the search warrant and recovered, among other things,marijuana plants growing in the yard and in a potted plant located on an outside rooflanding. During the execution of the search warrant, packaged cocaine and a quantity ofmoney were recovered from a bicycle tire tube located inside a shed in the backyard. Thedefendant owns the residence located at 86 Visitation Place and lives there.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of criminal possession of a controlled substance in the fourth degree(Penal Law § 220.09 [1]) and criminal possession of marijuana in the fourthdegree (Penal Law § 221.15) beyond a reasonable doubt. Moreover, uponthe exercise of our factual review power (see CPL 470.15 [5]), we are satisfiedthat the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]). The evidence established that the defendant exercised a sufficient levelof dominion and control over the shed, yard, and residence where the marijuana andcocaine were found to support the jury's finding that she constructively possessed themarijuana and cocaine (see People v Manini, 79 NY2d 561, 573 [1992]; People v Price, 14 AD3d718 [2005]; People vNunziata, 10 AD3d 695 [2004]).
The defendant's contention that her Fourth Amendment rights were violated by thewarrantless search of the shed located in her yard is unpreserved for appellate review, asshe failed to move to controvert the search warrant on that basis. We conclude, however,as alleged by the [*2]defendant, that the failure of hercounsel to move to suppress the evidence seized as a result of the warrantless search ofthe shed deprived her of her right to the effective assistance of counsel.
The standard of review applicable to a claim of ineffective assistance of counsel iswhether, under the circumstances of the case, the defendant received meaningfulrepresentation (see People v Baldi, 54 NY2d 137 [1981]). The failure to move tosuppress physical evidence does not per se compel a finding that the defendant receivedless than effective assistance of counsel (see People v Lockhart, 167 AD2d 427[1990]). Rather, such a failure will only constitute ineffective assistance when thedefendant establishes that no strategic or other legitimate explanation exists for counsel'sfailure to seek a suppression hearing (see People v Rivera, 71 NY2d 705[1988]).
Here, the search of the shed exceeded the scope of the warrant, which authorized thesearch of the defendant's residence and yard only (see People v Caruso, 174AD2d 1051 [1991]). Defense counsel had everything to gain and nothing to lose bymoving to suppress the evidence seized during the warrantless search of the shed (seePeople v Sinatra, 89 AD2d 913, 915 [1982]; People v Donovan, 184 AD2d654, 655 [1992]), and it appears that defense counsel's omission vitiated a viable defense,causing actual prejudice to the defendant (see People v Sullivan, 153 AD2d 223[1990]; People v Morris, 100 AD2d 630 [1984], affd 64 NY2d 803[1985]). Accordingly, we remit the matter to the Supreme Court, Kings County, for anew trial.
The defendant's contention that she was deprived of her right to a speedy trial iswithout merit (see CPL 30.30).
The defendant's remaining contentions are without merit. Hall, J.P., Cohen, LaSalleand Connolly, JJ., concur.