Opinion
703 KA 17-00969
10-02-2020
The PEOPLE of the State of New York, Respondent, v. Ricardo NELLONS, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN 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 (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ), defendant contends that Supreme Court erred in failing to conduct a Darden hearing with respect to a confidential informant who allegedly purchased heroin from defendant while working with the police (see generally People v. Darden , 34 N.Y.2d 177, 181, 356 N.Y.S.2d 582, 313 N.E.2d 49 [1974], rearg denied 34 N.Y.2d 995, 360 N.Y.S.2d 1027, 318 N.E.2d 613 [1974] ). Because defendant did not request a Darden hearing or object to the court's failure to conduct one, however, he failed to preserve his contention for our review (see People v. Brown , 181 A.D.3d 1301, 1303, 119 N.Y.S.3d 664 [4th Dept. 2020] ; People v. Cruz , 89 A.D.3d 1464, 1465, 932 N.Y.S.2d 650 [4th Dept. 2011], lv denied 18 N.Y.3d 993, 945 N.Y.S.2d 647, 968 N.E.2d 1003 [2012] ). We reject defendant's assertion that his contention is preserved for appellate review under CPL 470.05 (2) because the court "expressly decided" that a Darden hearing was not warranted. Even assuming, arguendo, that the court's statement that there is "no Darden here" constitutes an express ruling that defendant was not entitled to a Darden hearing, we conclude that such ruling was not "in re[s]ponse to a protest by a party" ( id. ).
We also reject defendant's related contention that his attorney was ineffective in failing to request a Darden hearing. A single error rises to the level of ineffective assistance of counsel only in the rare instance when the error " ‘involve[s] an issue that is so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it, and it [is] evident that the decision to forego the contention could not have been grounded in a legitimate trial strategy’ " ( People v. Keschner , 25 N.Y.3d 704, 723, 16 N.Y.S.3d 187, 37 N.E.3d 690 [2015], quoting People v. McGee , 20 N.Y.3d 513, 518, 964 N.Y.S.2d 73, 986 N.E.2d 907 [2013] ; see People v. Flowers , 28 N.Y.3d 536, 541, 46 N.Y.S.3d 497, 68 N.E.3d 1228 [2016] ). Additionally, counsel is not ineffective for failing to "make a motion or argument that has little or no chance of success" ( People v. Stultz , 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004] ). Here, the issue whether defendant was entitled to a Darden hearing is not "clear-cut." Moreover, because there is no indication in the record that the confidential informant was "wholly imaginary" or that his communications to the police were "entirely fabricated" ( Darden , 34 N.Y.2d at 182, 356 N.Y.S.2d 582, 313 N.E.2d 49 ; see People v. Crooks , 27 N.Y.3d 609, 613, 36 N.Y.S.3d 440, 56 N.E.3d 222 [2016] ), defendant has failed to establish that he would have been entitled to any relief had a Darden hearing been conducted.
Finally, we have reviewed defendant's remaining contentions and conclude that they lack merit.