PEOPLE v. FRANCIS (2009)

 Defendant appeals from a judgment convicting him following a nonjury trial of, inter alia, two counts of criminal possession of a controlled substance in the second degree (Penal Law § 220.18[1] ).   We reject the contention of defendant that he was denied effective assistance of counsel based on the failure of defense counsel to challenge the search warrant for his residence.   According to defendant, the issuance of the search warrant was not supported by probable cause.  “There can be no denial of effective assistance of ․ counsel arising from [defense] 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, rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671).   Here, the information in the search warrant application demonstrated an ongoing drug operation at defendant's residence, and the application thus “established probable cause to believe that a search of defendant's residence would result in evidence of drug activity” (People v. McLaughlin, 269 A.D.2d 858, 858, 702 N.Y.S.2d 737, lv. denied 95 N.Y.2d 800, 711 N.Y.S.2d 168, 733 N.E.2d 240;  see People v. Casolari, 9 A.D.3d 894, 895, 779 N.Y.S.2d 705, lv. denied 3 N.Y.3d 672, 784 N.Y.S.2d 10, 817 N.E.2d 828).   Defendant failed to preserve for our review his challenge to Supreme Court's Molineux ruling (see CPL 470.05[2] ), and we decline to exercise our power to review that challenge as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

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

MEMORANDUM: