PEOPLE v. NELLONS (2020)

MEMORANDUM AND ORDER

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

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), defendant contends that Supreme Court erred in failing to conduct a Darden hearing with respect to a confidential informant who allegedly purchased heroin from defendant while working with the police (see generally People v. Darden, 34 N.Y.2d 177, 181, 356 N.Y.S.2d 582, 313 N.E.2d 49 [1974], rearg denied 34 N.Y.2d 995, 360 N.Y.S.2d 1027, 318 N.E.2d 613 [1974]). Because defendant did not request a Darden hearing or object to the court's failure to conduct one, however, he failed to preserve his contention for our review (see People v. Brown, 181 A.D.3d 1301, 1303, 119 N.Y.S.3d 664 [4th Dept. 2020]; People v. Cruz, 89 A.D.3d 1464, 1465, 932 N.Y.S.2d 650 [4th Dept. 2011], lv denied 18 N.Y.3d 993, 945 N.Y.S.2d 647, 968 N.E.2d 1003 [2012]). We reject defendant's assertion that his contention is preserved for appellate review under CPL 470.05 (2) because the court “expressly decided” that a Darden hearing was not warranted. Even assuming, arguendo, that the court's statement that there is “no Darden here” constitutes an express ruling that defendant was not entitled to a Darden hearing, we conclude that such ruling was not “in re[s]ponse to a protest by a party” (id.).

We also reject defendant's related contention that his attorney was ineffective in failing to request a Darden hearing. A single error rises to the level of ineffective assistance of counsel only in the rare instance when the error “ ‘involve[s] an issue that is so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it, and it [is] evident that the decision to forego the contention could not have been grounded in a legitimate trial strategy’ ” (People v. Keschner, 25 N.Y.3d 704, 723, 16 N.Y.S.3d 187, 37 N.E.3d 690 [2015], quoting People v. McGee, 20 N.Y.3d 513, 518, 964 N.Y.S.2d 73, 986 N.E.2d 907 [2013]; see People v. Flowers, 28 N.Y.3d 536, 541, 46 N.Y.S.3d 497, 68 N.E.3d 1228 [2016]). Additionally, counsel is not ineffective for failing to “make a motion or argument that has little or no chance of success” (People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004]). Here, the issue whether defendant was entitled to a Darden hearing is not “clear-cut.” Moreover, because there is no indication in the record that the confidential informant was “wholly imaginary” or that his communications to the police were “entirely fabricated” (Darden, 34 N.Y.2d at 182, 356 N.Y.S.2d 582, 313 N.E.2d 49; see People v. Crooks, 27 N.Y.3d 609, 613, 36 N.Y.S.3d 440, 56 N.E.3d 222 [2016]), defendant has failed to establish that he would have been entitled to any relief had a Darden hearing been conducted.

Finally, we have reviewed defendant's remaining contentions and conclude that they lack merit.