THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ANTHONY DIXON DEFENDANT APPELLANT (2015)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[1][b];  [3] ), and one count of reckless endangerment in the first degree (§ 120.25).   Defendant contends that the People failed to establish that the police had reasonable suspicion to detain him for a showup identification because they failed to establish the reliability of the dog tracking evidence that the police used to assist them in locating him.   Defendant's contention is not preserved for our review (see People v. Lewis, 97 AD3d 1097, 1097–1098, lv denied 19 NY3d 1103;  People v. Cruz, 89 AD3d 1464, 1465–1466, lv denied 18 NY3d 993;  People v. Clark, 161 A.D.2d 1181, 1181, lv denied 76 N.Y.2d 786).   In any event, the evidence at the suppression hearing, even without the dog tracking evidence, supports Supreme Court's determination that the police had the requisite reasonable suspicion.   A description of the suspect was broadcast over the police radio, and officers arrived at the house where defendant was found crouching on the front porch, which was in geographic and temporal proximity to the scene of the crime, even before the dog tracking team arrived at that same location (see People v. Carr, 99 AD3d 1173, 1175, lv denied 20 NY3d 1010;  People v. Johnson, 174 A.D.2d 694, 694–695).

We reject defendant's further contention that he was denied effective assistance of counsel.   The People established the relevance of a gray hooded sweatshirt found at the house where defendant was apprehended inasmuch as two witnesses observed the suspect wearing a gray hooded sweatshirt at the time of the shooting (see People v. Schultz, 156 A.D.2d 944, 944, lv denied 82 N.Y.2d 808).   Therefore, defense counsel's failure to object to the admission of the sweatshirt in evidence does not constitute ineffective assistance of counsel inasmuch as such an objection would have had little to no chance of success (see People v. Stultz, 2 NY3d 277, 287, rearg. denied 3 NY3d 702).   Although defense counsel failed to object to the lack of a foundation for the dog tracking evidence (see People v. Towsley, 85 AD3d 1549, 1551, lv denied 17 NY3d 905;  People v. Vandenbosch, 216 A.D.2d 884, 885, lv denied 86 N.Y.2d 804;  People v. Abdullah, 134 A.D.2d 503, 504, lv denied 71 N.Y.2d 965), and failed to request a limiting instruction with respect to that evidence (see People v. Gangler, 227 A.D.2d 946, 946, lv denied 88 N.Y.2d 985, reconsideration denied 89 N.Y.2d 922;  Abdullah, 134 A.D.2d at 504), we conclude that those errors were not so egregious and prejudicial to defendant as to deny him a fair trial (see People v. Releford, 126 AD3d 1407, 1408, lv denied 25 NY3d 1170;  see generally People v. Turner, 5 NY3d 476, 480).   The dog tracking evidence concerned only the issue of defendant's identity as the shooter, and the evidence established that the police located defendant after the shooting even without the dog tracking evidence.   In addition, two witnesses identified defendant at trial as the shooter.   We therefore conclude that the evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant was afforded meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147).

Frances E. Cafarell

Clerk of the Court