| People v Parker |
| 2017 NY Slip Op 02208 [148 AD3d 1583] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v PernellParker, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of counsel), fordefendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), rendered January20, 2015. The judgment convicted defendant, upon a jury verdict, of criminal possession of acontrolled substance in the fifth degree and tampering with physical evidence.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reducing the conviction of tampering with physical evidence to attempted tampering withphysical evidence and by vacating the sentence imposed on count two of the indictment and asmodified the judgment is affirmed, and the matter is remitted to Erie County Court for sentencingon the conviction of attempted tampering with physical evidence.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal possession of a controlled substance in the fifth degree (Penal Law§ 220.06 [5]) and tampering with physical evidence (§ 215.40 [2]).Defendant contends that defense counsel was ineffective for failing to move to suppress thephysical evidence on the ground that he was unlawfully seized when the police officers pursuedhim into a store without reasonable suspicion of criminal activity. We reject that contention. It iswell settled that "a showing that [defense] counsel failed to make a particular pretrial motiongenerally does not, by itself, establish ineffective assistance of counsel" (People v Rivera,71 NY2d 705, 709 [1988]; see People vBiro, 85 AD3d 1570, 1571 [2011]), and it is equally well settled that, in order "[t]oprevail on a claim of ineffective assistance of counsel, it is incumbent on defendant todemonstrate the absence of strategic or other legitimate explanations for counsel's failure torequest a particular hearing. Absent such a showing, it will be presumed that counsel acted in acompetent manner and exercised professional judgment in not pursuing a hearing"(Rivera, 71 NY2d at 709). Furthermore, "[t]here can be no denial of effective assistanceof . . . counsel arising from [defense] counsel's failure to 'make a motion orargument that has little or no chance of success' " (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287[2004], rearg denied 3 NY3d 702 [2004]). Here, defendant failed to demonstrate theabsence of legitimate explanations for defense counsel's failure to make that particularsuppression motion, or that the " 'motion, if made, would have been successful and thatdefense counsel's failure to make that motion deprived him of meaningfulrepresentation' " (People vBassett, 55 AD3d 1434, 1437-1438 [2008], lv denied 11 NY3d 922 [2009]).
We reject defendant's contention that the conviction of criminal possession of a controlledsubstance in the fifth degree is based on legally insufficient evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in light of the elements of thatcrime as charged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's further contention that theverdict with respect to that count is against the weight of the evidence (see generallyBleakley, 69 NY2d at 495).
We agree with defendant, however, that the evidence is legally insufficient to support theconviction of tampering with physical evidence. Insofar as relevant here, a person is guilty of thatcrime when, "[b]elieving that certain physical evidence is about to be produced or used in anofficial proceeding or a prospective official proceeding, and intending to prevent such productionor use, he [or she] suppresses it by any act of concealment" (Penal Law § 215.40[2]). The People's theory was that defendant tampered with physical evidence by throwing bagsof cocaine onto the floor of a store with the intent of concealing the drugs from the pursuingpolice officers and thereby preventing the use of the drugs in a prospective official proceeding.The evidence at trial established that officers observed defendant throw bags of suspected crackcocaine onto the floor when he passed through the front entrance of the store. Although theoffense of tampering with physical evidence does not require the actual suppression of physicalevidence, there must be an act of concealment while intending to suppress the evidence (see People v Eaglesgrave, 108 AD3d434, 434 [2013], lv denied 21 NY3d 1073 [2013]). We conclude that the evidence islegally insufficient to establish that defendant accomplished an act of concealment inasmuch ashe dropped the items onto the floor in plain sight of the officers (cf. People v Atkins, 95 AD3d 731,731 [2012], lv denied 19 NY3d 994 [2012]). We further conclude, however, that there islegally sufficient evidence to sustain a conviction of attempted tampering with physical evidence(§§ 110.00, 215.40 [2]; Eaglesgrave, 108 AD3d at 435). We thereforemodify the judgment by reducing defendant's conviction of tampering with physical evidence toattempted tampering with physical evidence and vacating the sentence imposed on count two ofthe indictment (see CPL 470.15 [2] [a]), and we remit the matter to County Court forsentencing on the conviction of attempted tampering with physical evidence.Present—Whalen, P.J., Centra, DeJoseph, NeMoyer and Troutman, JJ.