PEOPLE v. HOWARD (2005)

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered March 12, 2004, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree and the violation of unlawful possession of marihuana.

On March 19, 2004, Detective Dennis Guiry of the City of Albany Police Department was conducting a “rip operation” with a confidential informant.   The informant paged defendant, who then unknowingly called an Albany Police Department cell phone.   The informant answered and ordered $250 of crack cocaine to be delivered to her at the corner of Central and Lexington Avenues in Albany.   When defendant arrived at that location in a vehicle driven by his girlfriend, he was arrested, and the police seized a film canister containing three pieces of crack cocaine from the seat where defendant had been riding.   The police also seized a small bag of marihuana from defendant's person.

Defendant was indicted and charged with criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the seventh degree and unlawful possession of marihuana.   Following a jury trial, defendant was convicted of criminal sale and criminal possession of a controlled substance in the third degree and unlawful possession of marihuana for which he was sentenced as a second felony offender to, inter alia, 12 1/212 to 25 years' imprisonment.   Defendant now appeals.

 Initially, defendant contends that County Court erred in denying his request for a Mapp hearing.   We disagree, albeit for reasons somewhat different than those expressed by County Court.   Defendant made an omnibus pretrial motion in which he sought dismissal of the indictment, a bill of particulars, discovery, Brady material and inspection of the grand jury minutes, as well as Sandoval and Mapp hearings.   In opposition to defendant's motion, the People correctly asserted that, inasmuch as the requested Mapp hearing was unsupported by sworn factual allegations supporting the grounds for the motion, the motion should be summarily denied (see CPL 710.60[3][b];  People v. Mendoza, 82 N.Y.2d 415, 430, 604 N.Y.S.2d 922, 624 N.E.2d 1017 [1993] ).

 We likewise reject defendant's contention that he was denied the effective assistance of counsel.   Here, counsel made appropriate pretrial motions, made adequate opening and closing statements and effectively cross-examined witnesses inferentially raising the issues that would be expected in this type of case.   In short, defense counsel's representation was adequate in any meaningful sense of that word (compare People v. Droz, 39 N.Y.2d 457, 463, 384 N.Y.S.2d 404, 348 N.E.2d 880 [1976] ).   There is utterly no likelihood that the result here would have been different but for the few deficiencies defendant now claims to have been attorney error (see People v. Douglas, 296 A.D.2d 656, 657-658, 746 N.Y.S.2d 72 [2002], lv. denied 99 N.Y.2d 535, 752 N.Y.S.2d 595, 782 N.E.2d 573 [2002] ).

ORDERED that the judgment is affirmed.

CREW III, J.

MERCURE, J.P., PETERS, SPAIN and KANE, JJ., concur.