PEOPLE v. GONCALVES (2001)

 On appeal from a judgment convicting him following a jury trial of criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [1] ), defendant contends that he was denied effective assistance of counsel.   We disagree.   Although defense counsel did not appear for two scheduled pretrial court appearances, defendant was not prejudiced thereby.   Defendant failed to establish that there was an absence of strategic or other legitimate explanation for defense counsel's failure to request Mapp or Huntley hearings (see, People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;  People v. Workman, 277 A.D.2d 1029, 716 N.Y.S.2d 198, lv. denied 96 N.Y.2d 764, 725 N.Y.S.2d 291, 748 N.E.2d 1087).   Defense counsel made cogent opening and closing statements, presented a reasonable although unsuccessful defense, cross-examined the prosecutor's witnesses and called witnesses on defendant's behalf.   We conclude that “the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

 We reject defendant's further contention that the prosecutor violated County Court's Sandoval ruling.   At the Sandoval hearing, the court determined that the prosecutor could ask only whether defendant was convicted of a misdemeanor in July 1992, and could not reveal the nature of the conviction unless defendant denied having been convicted of the misdemeanor.   When the prosecutor asked defendant whether he had been so convicted, however, defendant asked the prosecutor to identify the crime.   Consequently, defendant cannot now be heard to complain that the prosecutor responded to defendant's question.   In any event, the court instructed the jury on several occasions that proof of prior convictions could not be considered proof of the instant charge.   We further reject the contention of defendant that he was deprived of a fair trial by two comments of the prosecutor during summation (see, People v. Curley, 159 A.D.2d 969, 970, 552 N.Y.S.2d 768, lv. denied 76 N.Y.2d 733, 558 N.Y.S.2d 895, 557 N.E.2d 1191).

 The court properly denied defendant's request for a moral certainty charge.   Such a charge is not mandated where evidence of defendant's guilt is both direct and circumstantial (see, People v.. Daddona, 81 N.Y.2d 990, 992, 599 N.Y.S.2d 530, 615 N.E.2d 1014).   Here, there was direct evidence that the snowmobile was stolen and that it was in defendant's possession.   A moral certainty charge was not required merely because the proof with respect to the element of defendant's knowledge was circumstantial (see, People v. Reynolds, 269 A.D.2d 735, 737, 704 N.Y.S.2d 398, lv. denied 95 N.Y.2d 838, 713 N.Y.S.2d 145, 735 N.E.2d 425, cert. denied 531 U.S. 945, 121 S.Ct. 342, 148 L.Ed.2d 275).

MEMORANDUM: