Opinion
2019-04320 Ind. 1141/14
09-22-2021
The People of the State of New York, respondent, v. Ronald Bishop, appellant.
Alan Katz, Garden City Park, NY, for appellant. Joyce A. Smith, Acting District Attorney, Mineola, NY (Jason R. Richards and Madeline Collins of counsel), for respondent.
Alan Katz, Garden City Park, NY, for appellant.
Joyce A. Smith, Acting District Attorney, Mineola, NY (Jason R. Richards and Madeline Collins of counsel), for respondent.
CHERYL E. CHAMBERS, J.P. SYLVIA O. HINDS-RADIX COLLEEN D. DUFFY LINDA CHRISTOPHER, JJ.
DECISION & ORDER ON MOTION
Motion by the defendant, inter alia, for leave to reargue an appeal from a judgment of the Supreme Court, Nassau County, rendered March 15, 2019, which was determined by decision and order of this Court dated April 7, 2021.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is granted to the extent that leave to reargue is granted, upon reargument, the decision and order of this Court dated April 7, 2021 (People v Bishop, 193 A.D.3d 755), is recalled and vacated, the following decision and order is substituted therefor, and the motion is otherwise denied:
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Meryl J. Berkowitz, J.), rendered March 15, 2019, convicting him of criminal possession of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the fourth degree, criminal possession of a controlled substance in the seventh degree, unlawful possession of marihuana, criminal possession of marihuana in the fifth degree, criminally using drug paraphernalia, unauthorized angled parking, aggravated unlicensed operation of a motor vehicle in the third degree, and unlicensed operation of a motor vehicle, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant, who was apprehended while sitting in a vehicle, was accused of various crimes. Defense counsel's trial strategy was to acknowledge the defendant's guilt of certain counts, and to argue that the crack cocaine recovered by the police did not belong to the defendant, that "[h]e didn't know it was there... [h]e didn't put it there," the drugs may have belonged to his companion who pleaded guilty, and a police officer gave false testimony to implicate the defendant when he testified that bags of what appeared to be cocaine were recovered from the defendant's rear waistband. Contrary to the defendant's contention, defense counsel's strategic decision to enter into a stipulation that the alleged crack cocaine recovered from the defendant's waistband was in fact crack cocaine was not inconsistent with that defense and did not constitute ineffective assistance of counsel (see People v Benn, 68 N.Y.2d 941, 942; People v McCaskell, 217 A.D.2d 527, 528-529). As noted by the Supreme Court, defense counsel did not stipulate that the defendant possessed the items "recovered" from his waistband.
Nor did the defendant demonstrate that defense counsel was ineffective for failing to object to certain testimony of an experienced narcotics officer, who testified as to the practices of drug sellers (see People v Every, 146 A.D.3d 1157, 1166, affd 29 N.Y.3d 1103). Further, defense counsel did in fact object to substantial portions of that witness's testimony. Under the circumstances presented, the defendant failed to demonstrate the absence of strategic or other legitimate explanations for any of defense counsel's alleged shortcomings (see People v Taylor, 1 N.Y.3d 174, 176; People v Robinson, 160 A.D.3d 991, 992).
Moreover, the defendant failed to preserve for appellate review his contention that the Supreme Court improperly penalized him for his repeated failure to appear for sentencing, as defense counsel did not advance this argument at the time of sentencing (see People v Hurley, 75 N.Y.2d 887, 888; People v Grasso, 163 A.D.3d 991, 993). In any event, the contention is without merit. Moreover, the sentence imposed was not excessive (see People v Gee, 149 A.D.2d 728; People v Suitte, 90 A.D.2d 80).
CHAMBERS, J.P., HINDS-RADIX, DUFFY and CHRISTOPHER, JJ., concur.