Opinion
2014-06-13
The PEOPLE of the State of New York, Respondent, v. Jorge DeJESUS, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, and DeJOSEPH, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a nonjury verdict of two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ). Supreme Court properly refused to suppress defendant's statements and the weapons seized from the basement of his mother's home. Contrary to defendant's contention, the People established that defendant's mother voluntarily consented to the search of her home ( see People v. May, 100 A.D.3d 1411, 1412, 953 N.Y.S.2d 767,lv. denied20 N.Y.3d 1063, 962 N.Y.S.2d 614, 985 N.E.2d 924; People v. McCray, 96 A.D.3d 1480, 1481, 946 N.Y.S.2d 744,lv. denied19 N.Y.3d 1104, 955 N.Y.S.2d 559, 979 N.E.2d 820). Defendant's remaining contentions regarding the suppression hearing are not preserved for our review ( seeCPL 470.05[2] ), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ). “To the extent that defendant contends that defense counsel was ineffective for failing to raise [those issues] at the suppression hearing, we reject that contention because [t]here can be no denial of effective assistance of ... counsel arising from [defense] counsel's failure to make a motion or argument that has little or no chance of success” ( People v. Watson, 90 A.D.3d 1666, 1667, 935 N.Y.S.2d 823,lv. denied19 N.Y.3d 868, 947 N.Y.S.2d 417, 970 N.E.2d 440 [internal quotation marks omitted] ).
Defendant next contends that the verdict is against the weight of the evidence because he had only temporary innocent possession of the weapons. We reject that contention ( see People v. Hicks, 110 A.D.3d 1488, 1488, 972 N.Y.S.2d 800,lv. denied22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128). A person may be found to have had temporary and lawful possession of a weapon if, for example, “he found the weapon shortly before his possession of it was discovered and he intended to turn it over to the authorities” ( People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463). The court here rejected that defense inasmuch as defendant did not turn over the weapons to the police despite the opportunity to do so. Viewing the evidence in light of the elements of the crime in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.