| People v Harris |
| 2017 NY Slip Op 00779 [147 AD3d 1328] |
| February 3, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Daymond Harris, Appellant. |
William M. Roth, 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 (Michael L. Dwyer, J.), rendered March20, 2013. The judgment convicted defendant, upon a jury verdict, of criminal possession of acontrolled substance in the fourth degree and criminal possession of a controlled substance in theseventh degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of criminal possession of a controlled substance in theseventh degree and dismissing count three of the indictment with respect to defendant, and asmodified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal possession of a controlled substance in the fourth degree (Penal Law§ 220.09 [1]), and criminal possession of a controlled substance in the seventhdegree (§ 220.03). To the extent that defendant may be deemed to challenge thelegal sufficiency of the evidence, we conclude that his challenge lacks merit (see People vTorres, 68 NY2d 677, 678-679 [1986]; see generally People v Bleakley, 69 NY2d490, 495 [1987]). Additionally, contrary to defendant's contention, viewing the evidence in lightof the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally Bleakley, 69NY2d at 495).
Defendant did not object to the introduction of evidence that he was on parole at the time ofthe incident and thus failed to preserve for our review his contention that County Court erred inpermitting the prosecutor to present that evidence (see People v Johnson, 45 AD3d 606, 606 [2007], lv denied9 NY3d 1035 [2008]; see alsoPeople v Ricks, 49 AD3d 1265, 1266 [2008], lv denied 10 NY3d 869 [2008],reconsideration denied 11 NY3d 740 [2008]). In any event, we reject defendant'scontention. Defendant's parole officer testified that defendant resided at the residence in whichthe cocaine was found, and that he had previously observed defendant sleeping in the bedroom inwhich the drugs were discovered by the police. That evidence was highly relevant to the issues attrial, including, in this constructive possession case, whether defendant exercised dominion andcontrol over the bedroom in which the drugs were found. Evidence that a defendant is on paroleis admissible where, as here, it is relevant to the issues at trial and its probative value exceeds itsprejudicial effect (see generally People vScarver, 121 AD3d 1539, 1540 [2014], lv denied 24 NY3d 1123 [2015]; People v Johnson, 94 AD3d 1144,1145 [2012], lv denied 19 NY3d 997 [2012]; People v Pryor, 48 AD3d 1217, 1217-1218 [2008], lv denied10 NY3d 868 [2008]). In addition, the court minimized any prejudice to defendant byrefusing to admit any evidence detailing the specific crime of which defendant was convicted (cf. People v Dowdell, 133 AD3d1345, 1345-1346 [2015]), and by giving prompt cautionary instructions to the jury (seeJohnson, 45 AD3d at 606; People v Jones, 276 AD2d 292, 292 [2000], lv denied95 NY2d 965 [2000]; see generallyPeople v Kims, 24 NY3d 422, 439 [2014]).
Defendant further contends that he was denied effective assistance of counsel by a series ofpurported errors by his trial attorney. We reject that contention. With respect to defendant'scontention that trial counsel was ineffective in failing to object to the testimony of defendant'sparole officer, it is well settled that "[a] defendant is not denied effective assistance of trialcounsel merely because counsel does not make a motion or argument that has little or no chanceof success" (People v Stultz, 2NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]; see People v Gray, 27 NY3d 78,88 [2016]; People v Caban, 5 NY3d143, 152 [2005]). For the reasons discussed above, the court properly admitted the paroleofficer's testimony, and defense counsel therefore was not ineffective in failing to object to itsintroduction. Similarly without merit is defendant's contention that counsel was ineffective infailing to request a circumstantial evidence charge. "Defendant's proximity to the cocaine, whichwas in plain view, constitutes direct evidence of defendant's possession of the cocaine found inthe apartment" (People v Wilson, 284 AD2d 958, 958 [2001], lv denied 96 NY2d943 [2001]; see People v Goodrum,72 AD3d 1639, 1639 [2010], lv denied 15 NY3d 773 [2010]). Because this caseinvolved both direct and circumstantial evidence of guilt, a circumstantial evidence charge wasnot warranted, and the failure to request such a charge "cannot be said to have constitutedineffective assistance of counsel" (People v Jones, 138 AD3d 1144, 1145 [2016], lv denied 28NY3d 932 [2016]; see People vWay, 115 AD3d 558, 558-559 [2014], lv denied 24 NY3d 1048 [2014]; seealso People v Johnson, 303 AD2d 830, 836-837 [2003], lv denied 99 NY2d 655[2003], reconsideration denied 100 NY2d 583 [2003]).
Furthermore, " 'it is incumbent on defendant to demonstrate the absence of strategicor other legitimate explanations' for defense counsel's allegedly deficient conduct" (People v Atkins, 107 AD3d 1465,1465 [2013], lv denied 21 NY3d 1040 [2013], quoting People v Rivera, 71 NY2d705, 709 [1988]; see People v Benevento, 91 NY2d 708, 712 [1998]; People v Hutchings, 142 AD3d1292, 1295 [2016]), and defendant failed to meet that burden with respect to the remainderof the purported failures of counsel raised on appeal. Viewing the evidence, the law and thecircumstances of this case, in totality and as of the time of the representation, and noting inparticular that defendant was acquitted of the most serious charge in the indictment (see People v Adsit, 125 AD3d1430, 1431-1432 [2015], lv denied 25 NY3d 1068 [2015]), we conclude thatdefendant received meaningful representation (see generally People v Baldi, 54 NY2d137, 147 [1981]).
Finally, we agree with defendant that the third count of the indictment, charging him withcriminal possession of a controlled substance in the seventh degree, must be dismissed as aninclusory concurrent count of the remaining charge of which defendant was convicted(see CPL 300.30 [4]; 300.40 [3] [b]; People v Lee, 39 NY2d 388, 390 [1976]; People v Smith, 134 AD3d 1568,1569 [2015]). We therefore modify the judgment accordingly. Present—Whalen, P.J.,Smith, Peradotto, DeJoseph and Curran, JJ.