PEOPLE v. WALKER (2008)

 On appeal from a judgment convicting him upon a jury verdict of, inter alia, criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and criminal possession of a controlled substance in the fourth degree (§ 220.09[1] ), defendant contends that the evidence is legally insufficient to support the conviction because the testimony of the accomplice was neither credible nor sufficiently corroborated.   Defendant failed to preserve that contention for our review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Moses, 23 A.D.3d 283, 804 N.Y.S.2d 242, lv. denied 6 N.Y.3d 815, 812 N.Y.S.2d 455, 845 N.E.2d 1286;  People v. Parsons, 275 A.D.2d 933, 934, 714 N.Y.S.2d 182, lv. denied 95 N.Y.2d 937, 721 N.Y.S.2d 613, 744 N.E.2d 149, cert. denied 532 U.S. 998, 121 S.Ct. 1662, 149 L.Ed.2d 644) and, in any event, it is without merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The testimony of the accomplice that defendant asked her to hold cocaine for him and that she placed the cocaine in her bra was not incredible as a matter of law (see People v. Donaldson, 35 A.D.3d 1242, 826 N.Y.S.2d 540, lv. denied 8 N.Y.3d 984, 838 N.Y.S.2d 487, 869 N.E.2d 663;  People v. Olivero, 289 A.D.2d 1082, 735 N.Y.S.2d 327, lv. denied 98 N.Y.2d 639, 744 N.Y.S.2d 768, 771 N.E.2d 841).   The testimony of the accomplice was sufficiently corroborated by evidence that defendant asked his sister to hold a large sum of money for him when the police pulled over the vehicle driven by defendant's sister in which defendant and the accomplice were passengers.   In addition, it was corroborated by evidence that, when asked by the police to identify himself, defendant gave his cousin's name.   That nonaccomplice evidence tended to connect defendant to the crimes charged (see CPL 60.22[1];  People v. Patchen, 46 A.D.3d 1112, 1113, 847 N.Y.S.2d 745;  see generally People v. Besser, 96 N.Y.2d 136, 143-144, 726 N.Y.S.2d 48, 749 N.E.2d 727;  People v. Breland, 83 N.Y.2d 286, 292-293, 609 N.Y.S.2d 571, 631 N.E.2d 577).   Contrary to defendant's further contention, 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).

Contrary to the contention of defendant in his pro se supplemental brief, County Court did not abuse its discretion in declining to address his pro se motions (see People v. Rodriguez, 95 N.Y.2d 497, 502-503, 719 N.Y.S.2d 208, 741 N.E.2d 882;  People v. Lockett, 1 A.D.3d 932, 933, 767 N.Y.S.2d 750, lv. denied 1 N.Y.3d 630, 777 N.Y.S.2d 29, 808 N.E.2d 1288).   Defendant failed to preserve for our review the contention in his main brief that he was denied a fair trial based on a remark made by the prosecutor during summation (see People v. Dillon, 38 A.D.3d 1211, 834 N.Y.S.2d 890;  People v. Black, 38 A.D.3d 1283, 1286, 832 N.Y.S.2d 375, lv. denied 8 N.Y.3d 982, 838 N.Y.S.2d 485, 869 N.E.2d 661), and he also failed to preserve for our review the contention in his pro se supplemental brief that the prosecutor engaged in misconduct during the grand jury proceeding (see CPL 470.05[2] ).   In any event, those contentions are without merit.   The prosecutor's isolated remark during summation was not so egregious or improper as to deny defendant a fair trial (see People v. Dexter, 259 A.D.2d 952, 954, 688 N.Y.S.2d 289, affd. 94 N.Y.2d 847, 703 N.Y.S.2d 64, 724 N.E.2d 759;  Black, 38 A.D.3d at 1286, 832 N.Y.S.2d 375), and none of the prosecutor's allegedly improper actions during the grand jury proceeding rendered the indictment defective (see People v. Huston, 88 N.Y.2d 400, 408-409, 646 N.Y.S.2d 69, 668 N.E.2d 1362).

 Finally, we reject the contention of defendant in both his main brief and pro se supplemental brief that he was denied effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Contrary to the contention of defendant in his main brief, defense counsel's failure to object to the prosecutor's allegedly improper remark during summation did not amount to ineffective assistance of counsel (see People v. Gonzalez, 44 A.D.3d 790, 843 N.Y.S.2d 417, lv. denied 9 N.Y.3d 1006, 850 N.Y.S.2d 394, 880 N.E.2d 880).   With respect to the alleged errors of defense counsel set forth in defendant's pro se supplemental brief, we conclude that any error by former defense counsel in turning a letter over to the People at the grand jury proceeding did not prejudice defendant because the court precluded the People from introducing that letter in evidence at trial (see generally People v. Jackson, 21 A.D.3d 1355, 1356, 803 N.Y.S.2d 828, lvs. denied 6 N.Y.3d 777, 811 N.Y.S.2d 344, 844 N.E.2d 799, 7 N.Y.3d 757, 819 N.Y.S.2d 883, 853 N.E.2d 254).   We further conclude that defendant failed “to demonstrate the absence of strategic or other legitimate explanations” for defense counsel's failure to request a probable cause hearing (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698), and the failure of defense counsel to request an accomplice charge with respect to defendant's sister (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;  People v. Thomas, 33 A.D.3d 1053, 1055, 822 N.Y.S.2d 805, lv. denied 8 N.Y.3d 885, 832 N.Y.S.2d 497, 864 N.E.2d 627).   The evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant received meaningful representation (see generally Baldi, 54 N.Y.2d at 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: