| People v Breedlove |
| 2018 NY Slip Op 00193 [157 AD3d 1050] |
| January 11, 2018 |
| Appellate Division, Third Department |
[*1](January 11, 2018)
| The People of the State of New York, Respondent, v Gerald L.Breedlove, Appellant. |
Lance N. Salisbury, Ithaca, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered February 10, 2014, upon a verdict convicting defendant of the crime of criminalpossession of a controlled substance in the fifth degree.
In June 2013, defendant was charged in a two-count indictment with criminal possession of aweapon in the second degree and criminal possession of a controlled substance in the fifth degreestemming from a motor vehicle stop made at approximately 9:15 a.m. on May 7, 2013. Afterdefendant stopped his vehicle, he ran from the scene. The police officer pursued defendant as heran into the backyard of a residence where the officer saw him make a tossing motion with hishands as if he was discarding something. Police officers secured and handcuffed defendant in thebackyard and thereafter found a blue hat, orange pill bottle and a small handgun on the groundnear the location where defendant was apprehended. All three items were collected as evidenceand subjected to DNA testing. The DNA found on the hat and pill bottle matched defendant'sDNA, but the DNA sample collected from the gun was insufficient to permit conclusive testing.After a jury trial, defendant was convicted of criminal possession of a controlled substance in thefifth degree, but a mistrial was declared on the charge of criminal possession of a weapon in thesecond degree because the jury could not reach a unanimous verdict on that count. Thereafter,County Court sentenced defendant, as a second felony offender, to a prison term of four years,with two years of postrelease supervision. Defendant [*2]nowappeals from this judgment.[FN*]
Defendant first argues that County Court erred by holding the requested Sandovalhearing after the trial had commenced—specifically, subsequent to jury selection and priorto opening statements. This contention is not preserved for our review because it was not raisedat trial (see CPL 470.05 [2]; People v Lee, 16 AD3d 704, 704 [2005], lv denied 4 NY3d887 [2005]; People v Sealey, 239 AD2d 864, 865 [1997], lv denied 90 NY2d 910[1997]).
Defendant further argues that County Court erred by not dismissing the charge of criminalpossession of a weapon in the second degree at the first trial on the ground that the evidence waslegally insufficient. His claim is not properly before us. As relevant here, a defendant can appealonly from a judgment of conviction, not from a mistrial following a hung jury (see CPL450.10; People v Tingue, 91 AD2d 166, 167 [1983]). Thus, defendant's appeal from thejudgment entered following the first trial only brings up for review issues related to hisconviction of the crime of criminal possession of a controlled substance in the fifth degree.Moreover, defendant waived his right to challenge the legal sufficiency of the evidencesupporting the indictment for criminal possession of a weapon in the second degree when hestipulated to facts sufficient to support his conviction on the lesser included charge of criminalpossession of a weapon in the third degree at the second trial (see People v Mitchell, 152 AD3d 1089, 1089 [2017], lvdenied 30 NY3d 1021 [2017]; People v Harris, 139 AD3d 1244, 1245 [2016], lv denied 28NY3d 930 [2016]). Similarly, defendant may not maintain the challenge that a conviction on thecharge of criminal possession of a weapon in the second degree at the first trial would have beenagainst the weight of the evidence because he was not convicted of that charge.
Finally, we reject defendant's assertion that he was denied the effective assistance of counsel.The only reason advanced by defendant in support of that argument—that counsel failed topreserve his legal sufficiency challenge—is an insufficient basis, standing alone, toestablish ineffective assistance (seePeople v Harvey, 96 AD3d 1098, 1100 [2012], lv denied 20 NY3d 933 [2012]).In any event, our review of the record establishes that defense counsel filed appropriate motions,advanced an argument at the Sandoval hearing that resulted in a decision limiting theprior convictions that could be used on cross-examination of defendant, cross-examinedwitnesses and delivered appropriate opening and closing statements that presented the jury with areasonable defense to the weapon charge. Accordingly, defendant was provided with meaningfulrepresentation (see id. at 1100-1101).
Garry, P.J., Clark, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Subsequently, a nonjury trial washeld on stipulated facts on the first count of the indictment, criminal possession of a weapon inthe second degree, and defendant was found guilty of a lesser included offense of criminalpossession of a weapon in the third degree. He was sentenced on that conviction to a prison termof 2 to 4 years, to run concurrently with his sentence on his conviction of criminal possession ofa controlled substance in the fifth degree.