PEOPLE v. JACKSON (2009)

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered August 11, 2008, convicting defendant upon his plea of guilty of the crimes of criminal possession of a weapon in the second degree, attempted assault in the second degree and criminal sale of a controlled substance in the third degree.

On January 1, 2008 at approximately 3:00 A.M., when responding to a call reporting a shooting at a particular location in the City of Elmira, Chemung County, two police officers saw defendant walking on the public street with another individual in the vicinity of the shooting.   When the officers pulled over and stopped their vehicle, defendant fled and, while the officers chased him on foot, they witnessed defendant discard a gun.   Based upon that incident, defendant was charged with criminal possession of a weapon in the second degree.   Additionally, defendant was charged in two separate and unrelated indictments with attempted murder in the second degree, attempted assault in the first degree and criminal sale of a controlled substance in the third degree.

Defendant pleaded guilty to the crimes of criminal possession of a weapon in the second degree, attempted assault in the second degree and criminal sale of a controlled substance in the third degree in satisfaction of all three indictments.   He was thereafter sentenced to concurrent prison terms of 10 years, with five years of postrelease supervision, on the count of criminal possession of a weapon in the second degree, 1 1/3 to 4 years on the count of attempted assault in the second degree, and three years, with two years of postrelease supervision, on the count of criminal sale of a controlled substance in third degree, with all sentences running concurrently.   Defendant now appeals.

 We affirm.   To the extent that defendant argues that his conviction of criminal possession of a weapon in the second degree should be reversed because the discovery of the gun was the result of an unlawful seizure, such issue is not preserved for our review, as he failed to make a motion to suppress the gun (see CPL art. 710;  People v. Lancaster, 272 A.D.2d 719, 719-720, 708 N.Y.S.2d 182 [2000] ).   Furthermore, we are not persuaded by defendant's contention that defense counsel's failure to make a motion to suppress the gun deprived him of meaningful representation.   In determining the effectiveness of counsel, we must look at the “totality of the circumstances” (People v. Anderson, 38 A.D.3d 1061, 1063, 831 N.Y.S.2d 582 [2007], lv. denied 8 N.Y.3d 981, 838 N.Y.S.2d 484, 869 N.E.2d 660 [2007];  People v. Kalteux, 2 A.D.3d 967, 968, 768 N.Y.S.2d 390 [2003];  People v. Van Gorden, 307 A.D.2d 547, 547-548, 763 N.Y.S.2d 686 [2003], lv. denied 1 N.Y.3d 581, 775 N.Y.S.2d 797, 807 N.E.2d 910 [2003] ).   The fact that defense counsel did not request a particular pretrial hearing does not necessarily constitute ineffective assistance of counsel (see People v. Hall, 57 A.D.3d 1222, 1227, 870 N.Y.S.2d 508 [2008], lv. denied 12 N.Y.3d 817, 881 N.Y.S.2d 24, 908 N.E.2d 932 [2009] ).

Here, defendant failed to demonstrate the absence of a “ ‘strategic or other legitimate explanation[ ]’ ” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005], quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ) for counsel's failure to request a hearing to determine the admissibility of the gun (see People v. Hall, 57 A.D.3d at 1227, 870 N.Y.S.2d 508).   It is clear from the record that counsel's strategy focused largely on avoiding a conviction on the class B violent felony charge of attempted murder in the second degree.   Notably, while it is uncertain from this record whether defendant would have succeeded in suppressing the gun with respect to the weapons possession charge, defendant received an advantageous plea agreement encompassing all of the indictments-including the attempted murder charge-which significantly reduced his sentence exposure (see People v. Sterling, 57 A.D.3d 1110, 1113, 869 N.Y.S.2d 288 [2008], lv. denied 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d 1099 [2009];  People v. Farrington, 51 A.D.3d 1221, 1222, 857 N.Y.S.2d 376 [2008], lv. denied 11 N.Y.3d 736, 864 N.Y.S.2d 395, 894 N.E.2d 659 [2008];  People v. Brown, 49 A.D.3d 1028, 1028-1029, 853 N.Y.S.2d 438 [2008] ).   Not only could defendant have faced significantly longer sentences on each of the charges, but those sentences could have been imposed consecutively (see Penal Law § 70.25).

We further note that defense counsel made other appropriate pretrial motions (see People v. Hall, 57 A.D.3d at 1227, 870 N.Y.S.2d 508), and defendant stated during the plea colloquy that counsel answered all of his questions and that he was satisfied with counsel's services (see People v. Dobrouch, 59 A.D.3d 781, 781, 873 N.Y.S.2d 759 [2009], lv. denied 12 N.Y.3d 853, 881 N.Y.S.2d 664, 909 N.E.2d 587 [2009];  People v. Singletary, 51 A.D.3d 1334, 1335, 858 N.Y.S.2d 483 [2008], lv. denied 11 N.Y.3d 741, 864 N.Y.S.2d 400, 894 N.E.2d 664 [2008];  People v. Riddick, 40 A.D.3d 1259, 1260, 836 N.Y.S.2d 338 [2007], lvs. denied 9 N.Y.3d 925, 926, 844 N.Y.S.2d 180, 181, 875 N.E.2d 899, 900 [2007] ).   Under all of these circumstances, we conclude that defendant received meaningful representation.

 We also reject defendant's contention that his sentence was harsh and excessive.   Inasmuch as County Court imposed the agreed-upon sentence and considering defendant's criminal history, among other things, we find no abuse of discretion or extraordinary circumstances warranting a reduction of his sentence in the interest of justice (see People v. Milstead, 61 A.D.3d 1179, 876 N.Y.S.2d 570 [2009];  People v. Sterling, 57 A.D.3d at 1113, 869 N.Y.S.2d 288).

ORDERED that the judgment is affirmed.

STEIN, J.

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