Opinion
2014-01-3
The PEOPLE of the State of New York, Respondent, v. Earl FAISON, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant.William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, and VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him following a jury trial of two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[1][b]; [3] ). Defendant made only a general motion for a trial order of dismissal and thus failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, we conclude that defendant's contention lacks merit. According to the testimony of two eyewitnesses, they were standing outside a house when a vehicle driven by defendant slowed as it passed by them on the street. Defendant rolled the window down, looked around, and then drove off. Moments later, defendant made a U-turn and, as the vehicle passed by the eyewitnesses a second time, his codefendant shot multiple rounds from the passenger side of the vehicle. Thus, we conclude that there is a valid line of reasoning and permissible inferences to enable the jury to find that defendant shared his codefendant's intent and jointly possessed the weapon ( see People v. Velasquez, 44 A.D.3d 412, 412, 843 N.Y.S.2d 253, lv. denied9 N.Y.3d 1040, 852 N.Y.S.2d 25, 881 N.E.2d 1212; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we further conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Defendant further contends that the in-court identification of him by a prosecution witness was tainted by unduly suggestive circumstances, i.e., the fact that County Court asked him to stand during the in-court identification. Even assuming, arguendo, that defendant's contention has merit, we conclude that any error is harmless ( see generally People v. Aquino, 191 A.D.2d 574, 574, 595 N.Y.S.2d 91, lv. denied81 N.Y.2d 1069, 601 N.Y.S.2d 588, 619 N.E.2d 666).
We reject defendant's contention that he was denied effective assistance of counsel. “There can be no denial of effective assistance of trial counsel arising from counsel's failure to ‘make a motion or argument that has little or no chance of success' ” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883). Contrary to defendant's contention, testimony regarding the location in which the police found the only projectile recovered from the scene would have been admissible over defense counsel's objection “as background material that completed the narrative of the episode” (People v. Strong, 234 A.D.2d 990, 990, 651 N.Y.S.2d 823, lv. denied89 N.Y.2d 1016, 658 N.Y.S.2d 254, 680 N.E.2d 628). Also contrary to defendant's contention, expert testimony concerning the reliability of eyewitness identifications would have been inappropriate in this case because defendant was a person known to one of the eyewitnesses ( see People v. Abney, 13 N.Y.3d 251, 268–269, 889 N.Y.S.2d 890, 918 N.E.2d 486; see also People v. LeGrand, 8 N.Y.3d 449, 459, 835 N.Y.S.2d 523, 867 N.E.2d 374). We conclude that the record, viewed as a whole, demonstrates that defense counsel provided meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Defendant failed to preserve for our review his contention that the court at sentencing erroneously considered crimes of which he was not convicted, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see generally People v. Hirsh, 106 A.D.3d 1546, 1548, 965 N.Y.S.2d 266). Finally, we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.