| People v Carey |
| 2018 NY Slip Op 04125 [162 AD3d 1476] |
| June 8, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v David M. Carey, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of counsel), fordefendant-appellant.
David M. Carey, defendant-appellant pro se.
John J. Flynn, District Attorney, Buffalo (Ashley R. Lowry of counsel), for respondent.
Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), rendered March 2,2016. The judgment convicted defendant, upon a jury verdict, of criminal possession of acontrolled substance 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 a jury verdict ofcriminal possession of a controlled substance in the second degree (Penal Law§ 220.18 [1]). A parole warrant was issued for defendant after defendant failed toreport to parole and moved out of his parole-approved residence. Defendant was arrested in theearly morning hours outside an apartment leased to his girlfriend after defendant fled theresidence upon hearing parole officers knocking at the door. In conducting a protective sweep ofthe residence, the parole officers found a box that contained what appeared to be baggies ofcocaine. The parole officers found no furnishings upstairs at the residence, and they found somefurniture, including a bed, downstairs. They found only men's clothing in the apartment, and theyalso found defendant's identification card and what appeared to be a key to the residence.Defendant's girlfriend was inside the residence when the parole officers entered, but they hadobserved her outside 20 to 30 minutes earlier, knocking on the door several times before being letinside, thus suggesting that she did not have a key to the apartment.
We agree with defendant in his main and pro se supplemental briefs that County Court erredin finding that he lacked standing to contest the search of the residence. "One seeking standing toassert a violation of his Fourth Amendment rights must demonstrate a legitimate expectation ofprivacy. One may have an expectation of privacy in premises not one's own, e.g., an overnightguest" (People v Ortiz, 83 NY2d 840, 842 [1994]). Here, we conclude that defendantestablished his standing at least as an overnight guest, if not as something more (see People vTelfer, 175 AD2d 638, 639 [4th Dept 1991], lv denied 78 NY2d 1130 [1991];People v Moss, 168 AD2d 960, 960 [4th Dept 1990]; see generally People vRodriguez, 69 NY2d 159, 162-163 [1987]). We agree with the court's further determination,however, that the search of the apartment was lawful (see People v Johnson, 94 AD3d 1529, 1531-1532 [4th Dept 2012],lv denied 19 NY3d 974 [2012]). The search by the parole officers was rationally andreasonably related to the parole officers' duties "to detect and to prevent parole violations for theprotection of the public from the commission of further crimes" (People v Huntley, 43NY2d 175, 181 [1977]; see Johnson, 94 AD3d at 1531-1532).
We reject defendant's further contention in his main and pro se supplemental briefs that thecourt erred in granting the People's request for a missing witness charge with respect todefendant's girlfriend. Contrary to defendant's contention, the People established that thegirlfriend would have provided testimony on a material issue in the case and would have testifiedfavorably for defendant (see People v Soto, 297 AD2d 567, 567 [1st Dept 2002], lvdenied 99 NY2d 564 [2002]). Defendant's further contention that the missing witnessinstruction constituted improper burden-shifting is without merit. "Although a court may notordinarily comment on a defendant's failure to testify or otherwise come forward with evidence attrial, . . . once a defendant does so, the customary standards for giving a missingwitness charge apply" (People v Macana, 84 NY2d 173, 177 [1994]).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's further contention in his main brief that the verdict isagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]; People v Russaw, 114AD3d 1261, 1261-1262 [4th Dept 2014], lv denied 22 NY3d 1202 [2014]). Alsocontrary to defendant's contention in his main brief, the sentence is not unduly harsh orsevere.
We reject defendant's contention in his pro se supplemental brief that he was denied effectiveassistance of counsel because counsel failed to make a CPL 30.30 speedy trial motion. Therecord before us does not support defendant's contention that there was a speedy trial violation(see People v Cooper, 134 AD3d1583, 1585-1586 [4th Dept 2015]), and it is well settled that "[t]here can be no denial ofeffective assistance of trial counsel from counsel's failure to 'make a motion or argument that haslittle or no chance of success' " (People v Caban, 5 NY3d 143, 152 [2005]; see People v Jackson, 132 AD3d1304, 1305 [4th Dept 2015], lv denied 27 NY3d 999 [2016]). To the extent thatdefendant's contention involves matters outside the record on appeal, it must be raised by way ofa motion pursuant to CPL 440.10 (see Cooper, 134 AD3d at 1586). Defendant'scontention that the People failed to establish a sufficient chain of custody for the cocaine isunpreserved for our review (see Peoplev Alexander, 48 AD3d 1225, 1226 [4th Dept 2008], lv denied 10 NY3d 859[2008]), and we decline to exercise our power to address it as a matter of discretion in the interestof justice (see CPL 470.15 [6] [a]).
We have examined defendant's remaining contentions in his pro se supplemental brief andconclude that they are without merit. Present—Centra, J.P., Carni, DeJoseph, Troutmanand Winslow, JJ.