Opinion
108492
02-28-2019
The PEOPLE of the State of New York, Respondent, v. Lasean J. BROWN, Appellant.
Warren S. Landau, Cedarhurst, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Warren S. Landau, Cedarhurst, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Lynch, J.P., Mulvey, Devine, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Aarons, J.
Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered January 22, 2016, convicting defendant following a nonjury trial of the crimes of criminal possession of a controlled substance in the third degree, resisting arrest and aggravated unlicensed operation of a motor vehicle in the second degree.
A state trooper initiated a traffic stop of a vehicle that defendant was driving upon observing that the vehicle had tinted windows. After discovering that defendant's driver's license had been revoked, the trooper placed defendant under arrest without handcuffing him and directed him to stay seated on the hood of the vehicle. During an inventory search of the vehicle, wherein counterfeit CDs were found in the trunk, defendant fled the scene. Defendant was ultimately apprehended and placed into custody. The trooper returned to the vehicle to do a more thorough search, which resulted in the trooper finding a cigarette box containing a bag of heroin.
In connection with this incident, defendant was charged by indictment with criminal possession of a controlled substance in the third degree, resisting arrest and aggravated unlicensed operation of a motor vehicle in the second degree. Prior to trial, defendant moved to suppress, among other things, the physical evidence seized from his vehicle. After a combined Huntley/Mapp hearing, a Judicial Hearing Officer issued a report recommending denying the suppression motion, which County Court adopted. Following a nonjury trial, defendant was convicted as charged. County Court sentenced defendant, as a second felony offender, to various prison terms, the greatest of which was 12 years, to be followed by three years of postrelease supervision. Defendant appeals. We affirm.
We conclude that defendant's suppression motion was properly denied. A state trooper testified at the Huntley/Mapp hearing that he stopped a vehicle driven by defendant after observing the vehicle having tinted windows. The trooper, who had training regarding tinted windows, specifically testified that the driver's side windows were "so dark that [he] was unable to actually see the operator of the vehicle as the vehicle was going by." The Judicial Hearing Officer credited this testimony, and we perceive no basis to disturb such credibility determination (see People v. Williams, 132 A.D.3d 1155, 1156, 20 N.Y.S.3d 176 [2016], lv denied 27 N.Y.3d 1157, 39 N.Y.S.3d 390, 62 N.E.3d 130 [2016] ). Accordingly, we conclude that the traffic stop was justified (see People v. Banks, 148 A.D.3d 1359, 1360, 50 N.Y.S.3d 583 [2017] ; People v. Brock, 107 A.D.3d 1025, 1026–1027, 968 N.Y.S.2d 624 [2013], lv denied 21 N.Y.3d 1072, 974 N.Y.S.2d 321, 997 N.E.2d 146 [2013] ). To the extent that defendant contends that probable cause was lacking to conduct a full search of the vehicle and that the inventory search was invalid, such contentions are unpreserved for our review and, in any event, are without merit (see People v. Gabriel, 155 A.D.3d 1438, 1440–1441, 66 N.Y.S.3d 359 [2018], lv denied 31 N.Y.3d 1081, 79 N.Y.S.3d 103, 103 N.E.3d 1250 [2018] ; People v. Thompson, 106 A.D.3d 1134, 1135, 963 N.Y.S.2d 780 [2013] ). Defendant's claim that he was deprived of a fair trial due to certain remarks made by the prosecutor during closing statements is unpreserved for our review in the absence of a timely objection thereto (see People v. Richardson, 162 A.D.3d 1328, 1331, 79 N.Y.S.3d 734 [2018], lv denied 32 N.Y.3d 1128, 93 N.Y.S.3d 266, 117 N.E.3d 825 [2018] ; People v. Hotaling, 135 A.D.3d 1171, 1173, 23 N.Y.S.3d 715 [2016] ) and, in any event, is without merit. Defendant also asserts that he was denied his right to the assistance of counsel when County Court restricted him from communicating with anybody during an overnight recess while in the midst of being cross-examined. Such assertion, however, is unpreserved given that defense counsel was "present and available to register a protest" to the court's restriction but failed to do so ( People v. Narayan, 54 N.Y.2d 106, 112, 444 N.Y.S.2d 604, 429 N.E.2d 123 [1981] ; see People v. Umali, 10 N.Y.3d 417, 423, 859 N.Y.S.2d 104, 888 N.E.2d 1046 [2008] ). We further decline defendant's request to take corrective action in the interest of justice with respect to this issue (see People v. Stewart, 68 A.D.3d 1438, 1440, 892 N.Y.S.2d 570 [2009], lv denied 14 N.Y.3d 773, 898 N.Y.S.2d 105, 925 N.E.2d 110 [2010] ; People v. Riddick, 307 A.D.2d 821, 821, 763 N.Y.S.2d 319 [2003], lv denied 1 N.Y.3d 541, 775 N.Y.S.2d 246, 807 N.E.2d 296 [2003] ; but see People v. Samuels, 22 A.D.3d 507, 508, 802 N.Y.S.2d 458 [2005] ).
We are unpersuaded by defendant's contention that he received the ineffective assistance of counsel. "[C]ounsel will not be found to be ineffective on the basis that he or she failed to make an argument or motion that has little or no chance of success" ( People v. Thorpe, 141 A.D.3d 927, 935, 35 N.Y.S.3d 769 [2016], lv denied 28 N.Y.3d 1031, 45 N.Y.S.3d 383, 68 N.E.3d 112 [2016] ). In our view, the particular objections that defendant claims his counsel should have lodged would have had little chance of success (see People v. Hilton, 166 A.D.3d 1316, 1320, 87 N.Y.S.3d 399 [2018] ; People v. McCauley, 162 A.D.3d 1307, 1310, 79 N.Y.S.3d 743 [2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 865, 109 N.E.3d 1165 [2018] ; People v. Planty, 155 A.D.3d 1130, 1133, 64 N.Y.S.3d 364 [2017], lv denied 30 N.Y.3d 1118, 77 N.Y.S.3d 343, 101 N.E.3d 984 [2018] ). Viewing the record as a whole, where defense counsel moved to suppress evidence, vigorously cross-examined the People's witnesses and made cogent opening and closing statements, we cannot say that defendant was deprived of meaningful representation (see People v. Weaver, 167 A.D.3d 1238, 1245, 90 N.Y.S.3d 359 [2018] ; People v. Richardson, 162 A.D.3d at 1332–1333, 79 N.Y.S.3d 734 ; People v. Ackerman, 141 A.D.3d 948, 950–951, 35 N.Y.S.3d 575 [2016], lv denied 28 N.Y.3d 1181, 52 N.Y.S.3d 708, 75 N.E.3d 100 [2017] ).
Finally, we reject defendant's argument that the sentence is harsh and excessive. Given defendant's criminal history, which involved drug-related convictions, we discern no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v. Murray, 155 A.D.3d 1106, 1111, 64 N.Y.S.3d 158 [2018], lv denied 31 N.Y.3d 1015,, 78 N.Y.S.3d 285 102 N.E.3d 1066 [2018] ; People v. Jones, 155 A.D.3d 1103, 1106, 64 N.Y.S.3d 358 [2017], lv denied 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018] ).
Lynch, J.P., Mulvey, Devine and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.