| People v Harris |
| 2017 NY Slip Op 00806 [147 AD3d 1354] |
| February 3, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v TimothyHarris, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of counsel), fordefendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Nicholas T. Texido of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.),rendered January 8, 2015. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]).Contrary to defendant's contention, Supreme Court properly refused to suppress the weaponbased on defendant's contention that the testimony of the police witness was not credible. "It iswell settled that the suppression court's credibility determinations . . . are granteddeference and will not be disturbed unless unsupported by the record" (People v Esquerdo, 71 AD3d1424, 1424 [2010], lv denied 14 NY3d 887 [2010] [internal quotation marksomitted]). Here, the police witness testified that he observed a group of men standing outside agas station holding red plastic cups and long clear bottles, which he believed were liquor bottles.When he asked the group what they were doing, defendant replied that they were having a fewdrinks to celebrate his birthday. The police witness testified that he intended to issue citations tothe men for violating the city ordinance prohibiting the possession of open containers of alcoholin public, and he directed the men to stand by the police car, at which point defendant ran and thepolice witness chased him in order to issue a citation for the violation of the ordinance (see People v Basono, 122 AD3d553, 553 [2014], lv denied 25 NY3d 1069 [2015]). He testified that, while he waschasing defendant, he observed defendant reach into his pocket and throw an object into a yard.The gun was recovered from that area shortly thereafter. Although a defense witness refuted thepolice witness's testimony that the men were drinking liquor, the prosecution presented rebuttalevidence, i.e., a recorded telephone call from the jail wherein defendant stated that he washolding a bottle of liquor when the police approached him. We therefore will not disturb thecourt's credibility determination, and we conclude that the court properly refused to suppress thegun, which defendant had abandoned (see People v Martinez, 80 NY2d 444, 448-449[1992]).
Contrary to defendant's further contention, he was not denied his constitutional right toparticipate in the suppression hearing. Although he remained at the counsel table while the court,the police witness and counsel listened to a dispatch recording during cross-examination of thepolice witness, the record establishes that defense counsel explicitly waived defendant's presence"in open court while defendant was present," after the court had stated on the record that the onlymeans by which to hear the recording was on the court clerk's computer (People v Taylor, 136 AD3d 1331,1332 [2016], lv denied 27 NY3d 1075 [2016]). We further conclude that defendant wasnot denied his right to be present at a material stage of the proceedings when the court reviewedthe recorded telephone call from the jail that was admitted in evidence over defense counsel'sobjection. Defendant was present when the evidence was admitted in evidence, which is amaterial stage of the hearing (see People v Monroe, 90 NY2d 982, 984 [1997]). Inasmuchas the exhibit had been received in evidence, the court's review of that evidence was "at best anancillary proceeding," at which he had the right to be present if he had " 'something ofvalue to contribute,' " or if his "exclusion could 'substantially affect the ability to defendagainst the charge' " (id.). We conclude that "on this record defendant's absencedid not compromise his ability to advance his position or counter the People's theory, [and thus]defendant's presence was not required" (id.).
We further conclude that defendant was not denied effective assistance of counsel basedupon defense counsel's waiver of his presence at the court clerk's desk while the dispatchrecording was played during the hearing or upon her consent to the court's request that it reviewthe exhibit of the recorded jail call in chambers, rather than in the full courtroom, after it hadbeen received in evidence (see generallyPeople v Caban, 5 NY3d 143, 152 [2005]). We likewise reject defendant's contentionthat defense counsel's failure to review the recorded telephone call constitutes ineffectiveassistance of counsel. The record establishes that defense counsel had been apprised by theprosecutor that the exhibit contained a recorded call wherein defendant stated that he was holdinga bottle of liquor when the police arrived, and we conclude that her reliance on the prosecutor'sstatement does not constitute ineffective assistance of counsel (see generally id.). Finally,we reject defendant's contention that the failure of defense counsel to submit a post-hearingargument on the suppression issue constitutes ineffective assistance of counsel. The omnibusmotion set forth a cogent theory for suppression of the evidence, and defense counsel vigorouslypursued that theory through cross-examination of the police witness and by presenting a defensewitness (cf. People v Clermont, 22NY3d 931, 933-934 [2013]; Peoplev Layou, 114 AD3d 1195, 1198 [2014]). We therefore conclude that defendant receivedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Present—Whalen, P.J., Smith, DeJoseph, Curran and Scudder, JJ.