PEOPLE v. MARCIAL (2007)

 In appeal No. 1, defendant appeals from a judgment convicting him, upon a jury verdict, of criminal possession of a controlled substance in the first degree (Penal Law former § 220.21[1] ), criminal possession of a controlled substance in the third degree (§ 220.16[1] ), and criminally using drug paraphernalia in the second degree (§ 220.50[2] ).   In appeal No. 2, he appeals from a judgment convicting him, upon the same jury verdict, of criminal possession of a controlled substance in the third degree (§ 220.16[1] ).   We reject the contention of defendant in each appeal that he was denied effective assistance of counsel.   Defense counsel's failure “to make a particular pretrial motion generally does not, by itself, establish ineffective assistance of counsel” (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;  see People v. Torrence, 135 A.D.2d 1075, 523 N.Y.S.2d 265, lv. denied 70 N.Y.2d 1011, 526 N.Y.S.2d 946, 521 N.E.2d 1089).   To prevail on that ground, “it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's failure to [make such a motion]” (Rivera, 71 N.Y.2d at 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;  see People v. Morris, 37 A.D.3d 1088, 1089, 829 N.Y.S.2d 329).   Stated differently, defendant must show that the particular motion, if made, would have been successful and that defense counsel's failure to make that motion deprived him of meaningful representation (see People v. Matthews, 27 A.D.3d 1115, 1116, 811 N.Y.S.2d 514;  People v. Oliver, 24 A.D.3d 1305, 805 N.Y.S.2d 874, lv. denied 6 N.Y.3d 836, 814 N.Y.S.2d 85, 847 N.E.2d 382;   People v. Silverio-Mercedes, 239 A.D.2d 923, 661 N.Y.S.2d 819, lv. denied 90 N.Y.2d 943, 664 N.Y.S.2d 762, 687 N.E.2d 659).   Here, defendant contends that defense counsel's failure to challenge the legitimacy of the search warrant and to seek suppression of the critical physical evidence found on his person constituted ineffective assistance of counsel.   The search warrant at issue was sealed by court order and is not a part of the record on appeal, and we therefore are unable to review that part of defendant's contention with respect to the search warrant.   With respect to the search of defendant's person, we note that it is troubling that defense counsel failed to seek to suppress the drugs found on defendant's person because a lack of physical evidence would have been defendant's only conceivable defense to that drug possession charge.   Nevertheless, “prudence dictates that the issue of ineffective assistance of counsel be raised in a posttrial application ․ where ‘a thorough evaluation of each claim based on a complete record’ can be made” (People v. Zeh, 289 A.D.2d 692, 695, 734 N.Y.S.2d 306, quoting Rivera, 71 N.Y.2d at 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;  see Oliver, 24 A.D.3d 1305, 805 N.Y.S.2d 874).   We further conclude on the record before us that the cumulative effect of defense counsel's alleged deficiencies, viewed in totality and as of the time of the representation, did not deprive defendant of effective assistance of counsel (see generally People v. Satterfield, 66 N.Y.2d 796, 798-799, 497 N.Y.S.2d 903, 488 N.E.2d 834;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: