PEOPLE v. WEBB (2009)

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of robbery in the first degree (Penal Law § 160.15[4] ) and one count of assault in the second degree (§ 120.05[7] ), arising from three separate incidents.   As defendant correctly concedes, he failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence inasmuch as he failed to move for a trial order of dismissal on the ground raised on appeal (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, that contention 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).   We therefore reject the further contention of defendant that he was denied effective assistance of counsel based on defense counsel's failure to make a motion on that ground.  “There can be no denial of effective assistance of ․ counsel arising from [defense] counsel's failure to ‘make a motion ․ 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;  see People v. Odom, 53 A.D.3d 1084, 1087, 861 N.Y.S.2d 892, lv. denied 11 N.Y.3d 792, 866 N.Y.S.2d 618, 896 N.E.2d 104;  People v. Phelps, 4 A.D.3d 863, 771 N.Y.S.2d 783, lv. denied 2 N.Y.3d 804, 781 N.Y.S.2d 303, 814 N.E.2d 475).   Furthermore, “the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that [defense counsel] provided meaningful representation” (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we further conclude that 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, the letters that he wrote to his fiancee in which he admitted that he committed the assault and implied that he committed several of the other crimes were properly admitted in evidence under the party admissions exception to the hearsay rule (see People v. Swart, 273 A.D.2d 503, 505, 709 N.Y.S.2d 653, lv. denied 95 N.Y.2d 908, 716 N.Y.S.2d 649, 739 N.E.2d 1154;  see generally People v. Humphrey, 15 A.D.3d 683, 685, 789 N.Y.S.2d 325, lv. denied 5 N.Y.3d 763, 801 N.Y.S.2d 257, 258, 834 N.E.2d 1267, 1268).   Defendant further contends that County Court abused its discretion in admitting certain photographs in evidence.   We reject that contention.   With respect to the photograph of an individual holding a shotgun, a witness testified that the shotgun was the same as that used in the robberies charged in the indictment and that defendant was the person holding it.   Inasmuch as defendant's possession of the shotgun was at issue, evidence that defendant possessed that weapon at an earlier time was relevant, and the probative value of the photograph outweighed its prejudicial effect (cf. People v. Brown, 216 A.D.2d 737, 737-738, 628 N.Y.S.2d 835;  see generally People v. Marrero, 191 A.D.2d 289, 594 N.Y.S.2d 263, lv. denied 81 N.Y.2d 973, 598 N.Y.S.2d 775, 615 N.E.2d 232).   Contrary to the further contention of defendant, the People were permitted to introduce the photograph to strengthen their case although they had already established a prima facie case with respect to defendant's possession of a weapon (see generally People v. Alvino, 71 N.Y.2d 233, 245, 525 N.Y.S.2d 7, 519 N.E.2d 808;  People v. Marrin, 205 N.Y. 275, 280, 98 N.E. 474;  People v. Radoncic, 259 A.D.2d 428, 687 N.Y.S.2d 141, lv. denied 93 N.Y.2d 1005, 695 N.Y.S.2d 751, 717 N.E.2d 1088).   With respect to the remaining photographs, we conclude that they were properly admitted in evidence because they were also relevant to material issues in the case, and “[p]hotographic evidence should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant” (People v. Pobliner, 32 N.Y.2d 356, 370, 345 N.Y.S.2d 482, 298 N.E.2d 637, rearg. denied 33 N.Y.2d 657, 348 N.Y.S.2d 1030, 303 N.E.2d 710, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110;  see People v. Giles, 20 A.D.3d 863, 864, 798 N.Y.S.2d 635, lv. denied 5 N.Y.3d 806, 803 N.Y.S.2d 35, 836 N.E.2d 1158), which was not the case here.

 Contrary to defendant's contention, the showup identification procedure used in connection with two of the victims was not unduly suggestive inasmuch as “the showup was ‘conducted in close geographic and temporal proximity to the crime’ ” (People v. Lewis, 306 A.D.2d 931, 932, 762 N.Y.S.2d 325, lv. denied 100 N.Y.2d 596, 766 N.Y.S.2d 171, 798 N.E.2d 355, quoting People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611).   With respect to the photo array viewed by a third victim, we conclude that “the People met their initial burden of establishing the reasonableness of the police conduct ․, and defendant failed to meet his ultimate burden of proving that the photo array was unduly suggestive” (People v. Bell, 19 A.D.3d 1074, 1075, 796 N.Y.S.2d 464, lv. denied 5 N.Y.3d 803, 803 N.Y.S.2d 32, 836 N.E.2d 1155, 5 N.Y.3d 850, 806 N.Y.S.2d 170, 840 N.E.2d 139;  see People v. Levy, 281 A.D.2d 984, 723 N.Y.S.2d 300, lv. denied 96 N.Y.2d 831, 729 N.Y.S.2d 452, 754 N.E.2d 212).

 Even assuming, arguendo, that defendant preserved for our review his contention that the court erred in denying his motion to sever certain counts of the indictment, we conclude that “[t]he counts were properly joined under CPL 200.20(2)(b), and the court had no discretion to sever them” (People v. Van Duser [Appeal No. 2], 277 A.D.2d 1034, 1035, 716 N.Y.S.2d 197, lv. denied 96 N.Y.2d 739, 722 N.Y.S.2d 807, 745 N.E.2d 1030;  see People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083;  see generally People v. Lane, 56 N.Y.2d 1, 7, 451 N.Y.S.2d 6, 436 N.E.2d 456).   The sentence is not unduly harsh or severe.   We have considered defendant's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: