| People v Cole |
| 2017 NY Slip Op 05325 [151 AD3d 662] |
| June 29, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Eldrick Cole, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Sara N. Maeder of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jeffrey A. Wojcik of counsel), forrespondent.
Judgment, Supreme Court, New York County (Maxwell Wiley, J., on pretrial motions andplea; Patricia M. Nuñez, J., at sentencing), rendered May 1, 2014, convicting defendant ofcriminal possession of stolen property in the fourth degree, and sentencing him, as a secondfelony offender, to a term of 1
We conclude that defendant received effective assistance under the state and federalstandards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland vWashington, 466 US 668 [1984]). We agree with defendant that his first attorney shouldhave made a timely motion to suppress the stolen credit cards recovered from defendant's wallet,based on the facts known to the attorney at the time he made his omnibus motion. However, therecord, as expanded by way of the CPL 440.10 motion, does not establish any reasonablelikelihood that defendant ultimately would have prevailed on the suppression theory he claimsshould have been advanced by counsel (see e.g. People v Evans, 16 NY3d 571, 576 [2011]). An attorney cannot bedeemed ineffective for failing to "make a motion or argument that has little or no chance ofsuccess" (People v Stultz, 2 NY3d277, 287 [2004]).
While defendant asserts that the cards were removed from the wallet as the result of thesearch of a closed container without the requisite exigent circumstances (see People v Jimenez, 22 NY3d717 [2014]), the facts set forth in support of defendant's own motion to vacate the judgmentactually describe what appears to have been a lawful stationhouse inspection of an arrestee'spersonal effects (see People v Perel, 34 NY2d 462, 465-468 [1974]; see also Illinois vLafayette, 462 US 640 [1983]). Although such a search may be described as an "inventory"search, it is sometimes also described as "incident" to an arrest (see e.g. People vGreenwald, 90 AD2d 668, 668 [4th Dept 1982] ["The subsequent search of effects found onthe person is then but a lesser-related intrusion incident to the arrest already effected"]). Thus, wedo not find that the People waived this issue by way of any imprecise language in theiraffirmation in opposition to the CPL article 440 motion describing the circumstances of, andjustification for, the examination of the contents of defendant's wallet. In any event, haddefendant's original trial counsel made a [*2]suppression motion,the People would have been free to argue any theory supported by the evidence, and the recordbefore us provides no reason to believe that the motion would have succeeded.Concur—Sweeny, J.P., Renwick, Andrias, Kapnick and Kahn, JJ.