PEOPLE v. BURGESS (2018)

MEMORANDUM AND ORDER

Defendant appeals from a judgment convicting him upon a nonjury verdict of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ).  By failing to move for a trial order of dismissal, defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v. Scott, 60 A.D.3d 1396, 1397, 876 N.Y.S.2d 271 [4th Dept. 2009], lv denied 12 N.Y.3d 821, 881 N.Y.S.2d 29, 908 N.E.2d 937 [2009] ).  Contrary to defendant's contention, his CPL 330.30 motion did not preserve the issue for our review (see People v. Malave, 52 A.D.3d 1313, 1314, 860 N.Y.S.2d 365 [4th Dept. 2008], lv denied 11 N.Y.3d 790, 866 N.Y.S.2d 617, 896 N.E.2d 103 [2008] ).  In any event, that contention lacks merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).  The evidence at trial established that two police officers observed defendant engage in what appeared to be a hand-to-hand drug transaction with a man in a red jacket.  The police found drugs stashed on the ground next to a log, in the same location where the officers had observed defendant kneeling down before handing something to the man in the red jacket.  When defendant was arrested, the police found crumpled bills in his front right pocket, which was consistent with drug dealers quickly taking money and stuffing it into their pockets.  We conclude that there is a “valid line of reasoning and permissible inferences that could lead a rational person to conclude that every element of the charged crime has been proven beyond a reasonable doubt” (People v. Delamota, 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ).  Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), 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).

Defendant's contention that County Court erred in failing to consider the lesser included offense of criminal possession of a controlled substance in the seventh degree is not preserved for our review (see People v. Youngs, 101 A.D.3d 1589, 1590, 956 N.Y.S.2d 775 [4th Dept. 2012], lv denied 20 N.Y.3d 1105, 965 N.Y.S.2d 802, 988 N.E.2d 540 [2013] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

We reject defendant's contention that he was denied effective assistance of counsel.  Counsel's failure to pursue a probable cause hearing or make a motion for a trial order of dismissal does not constitute ineffective assistance of counsel inasmuch as such motions had little or no chance of success (see People v. Galens, 111 A.D.3d 1322, 1323, 974 N.Y.S.2d 233 [4th Dept. 2013], lv denied 22 N.Y.3d 1088, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014];  People v. Murray, 7 A.D.3d 828, 830–831, 776 N.Y.S.2d 368 [3d Dept. 2004], lv denied 3 N.Y.3d 679, 784 N.Y.S.2d 17, 817 N.E.2d 835 [2004];  see generally People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ).  Defense counsel's stipulation that the substance recovered by the police was cocaine was a matter of trial strategy inasmuch as defendant called a witness who testified that the cocaine belonged to him (see generally People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ).  Likewise, defense counsel's failure to object to the admission of certain photographs was a matter of strategy inasmuch as she used those photographs to challenge the vantage point of the officers when they conducted the surveillance.  We have examined the remaining allegations of ineffective assistance of counsel raised by defendant and conclude that they lack merit (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).  We have considered defendant's remaining contentions and conclude that they are also without merit.

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

Memorandum: