PEOPLE v. PENA

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Freddy Gonzalez PENA, a/k/a Pedro Jose Serrano, a/k/a Daniel Pena, Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  PIGOTT, JR., P.J., WISNER, SCUDDER and LAWTON, JJ. Kristin M. Preve, Buffalo, for Defendant-Appellant. Raymond C. Herman, for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him after a jury trial of criminal possession of a controlled substance in the third and fourth degrees (Penal Law § 220.16[1];  § 220.09[1] ), forgery in the second degree (Penal Law § 170.10[1] ) and criminal impersonation in the second degree (Penal Law § 190.25[1] ).   The charges arose from an incident in which the police found a quantity of heroin in the basement of a building and defendant hiding nearby.   Defendant contends that he was denied effective assistance of counsel principally because his attorney failed to make a pretrial motion to suppress the heroin.   Defendant, however, never asserted a possessory interest in the heroin and thus lacked standing to bring the motion (see, People v. Brown, 256 A.D.2d 42, 682 N.Y.S.2d 32, lv. denied 93 N.Y.2d 871, 689 N.Y.S.2d 433, 711 N.E.2d 647;  People v. Mitchelle, 253 A.D.2d 677, 678, 680 N.Y.S.2d 474;  People v. Cruz, 165 A.D.2d 205, 208-209, 566 N.Y.S.2d 608, lv. denied 77 N.Y.2d 959, 570 N.Y.S.2d 493, 573 N.E.2d 581;  People v. Barshai, 100 A.D.2d 253, 255-256, 474 N.Y.S.2d 288, lv. denied 62 N.Y.2d 804, 477 N.Y.S.2d 1028, 465 N.E.2d 1271, cert. denied 469 U.S. 885, 105 S.Ct. 257, 83 L.Ed.2d 193). “[T]he evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   We reject the further contention of defendant that he was denied a fair trial by proof of two letters that he wrote while in prison.   Defendant does not contest the relevancy of the letters to the forgery and criminal impersonation charges, and his contention that he was unduly prejudiced by such proof is purely speculative.   The sentence is neither unduly harsh or severe.   We have reviewed the remaining contentions raised in the pro se supplemental brief and counsel's supplemental brief concerning the admissibility of the heroin and the expert testimony of the chemist.   None of those contentions is preserved for our review (see, CPL 470.05[2] ), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).

Judgment unanimously affirmed.

MEMORANDUM: