PEOPLE v. MITCHELLE (1998)

Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered September 7, 1995, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to a term of 3 1/212 to 7 years, unanimously affirmed.

 Defendant's claim of ineffective assistance of counsel was never raised in a CPL 440.10 motion, where crucial background facts might have been developed on proper inquiry, and therefore this Court cannot evaluate the issue without resort to “supposition and conjecture” (see, People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).   On the instant record, we conclude that defendant received effective assistance, and that counsel's failure to seek pre-trial suppression of the weapon, recovered from the pavement, may be explained by the difficulties inherent in establishing standing, given defendant's position that he was never in possession of the weapon (see, People v. Cruz, 165 A.D.2d 205, 208-209, 566 N.Y.S.2d 608, lv. denied 77 N.Y.2d 959, 570 N.Y.S.2d 493, 573 N.E.2d 581).   Defendant has thus waived any claim that the gun should be suppressed, and we would in any event find such argument without merit.   The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672).   There was ample evidence of guilt, including evidence that defendant was seen bending down to a spot on the pavement and standing again, moments before the gun was found on that spot, and evidence that a bullet shell of matching caliber was later found on defendant's seat in a police vehicle, as well as positive identification by both complainants of defendant as having brandished the gun.   Defendant's acquittal of certain counts does not undermine the sufficiency and weight of the evidence supporting the count upon which he was convicted (see People v. Rivera, 201 A.D.2d 377, 607 N.Y.S.2d 930, lv. denied 83 N.Y.2d 875, 613 N.Y.S.2d 136, 635 N.E.2d 305).

MEMORANDUM DECISION.