Opinion
1016 KA 10-01037.
10-02-2015
The PEOPLE of the State of New York, Respondent, v. Marlo J. BLOCKER, also known as Marlow, Defendant–Appellant.
Shirley A. Gorman, Brockport, for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Shirley A. Gorman, Brockport, for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, WHALEN, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM: Defendant appeals from a judgment convicting him, upon a jury verdict, of four counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[1][b] ; [3] ), two counts of criminal possession of a weapon in the third degree (§ 265.02[1] ), and a traffic infraction. We reject defendant's contention that he was denied effective assistance of counsel. Defendant failed to demonstrate that the alleged deficiencies in the pretrial suppression motion compromised his defense or his right to a fair trial, inasmuch as County Court addressed his challenge to the legality of the search of his vehicle (see People v. Hobot, 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102 ; People v. Clark, 6 A.D.3d 1066, 1067, 776 N.Y.S.2d 656, lv. denied 3 N.Y.3d 638, 782 N.Y.S.2d 409, 816 N.E.2d 199 ). Defendant's contention that counsel was ineffective in failing to move to sever his trial from that of his codefendant is based on matters outside the record on appeal and therefore must be raised in a motion pursuant to CPL 440.10 (see People v. Fuentes, 52 A.D.3d 1297, 1300, 859 N.Y.S.2d 841, lv. denied 11 N.Y.3d 736, 864 N.Y.S.2d 395, 894 N.E.2d 659 ). Similarly, a motion pursuant to CPL 440.10 is the proper procedural vehicle for defendant to raise his contention that counsel failed to conduct an adequate investigation (see People v. Conway, 118 A.D.3d 1290, 1291, 988 N.Y.S.2d 337, lv. denied 9 N.Y.3d 990, 848 N.Y.S.2d 607, 878 N.E.2d 1023 ). Further, although counsel failed to object to comments by the prosecutor that the People concede supported an improper “safe streets” argument, “it cannot be said that, viewing counsel's representation in totality, such error deprived defendant of meaningful representation” (People v. Brown, 70 A.D.3d 1302, 1304, 894 N.Y.S.2d 700, affd. 17 N.Y.3d 742, 929 N.Y.S.2d 12, 952 N.E.2d 1004 ; see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
Defendant failed to preserve for our review his contention that the warrantless search of his vehicle constituted an improper inventory search (see CPL 470.05[2] ; People v. Redden, 27 A.D.3d 1173, 1174, 810 N.Y.S.2d 761, lv. denied 7 N.Y.3d 793, 821 N.Y.S.2d 823, 854 N.E.2d 1287 ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). We reject defendant's further contention that the court erred in charging the jury on accessorial liability (see People v. Rosario, 277 A.D.2d 943, 944, 716 N.Y.S.2d 235, affd. 96 N.Y.2d 857, 730 N.Y.S.2d 29, 754 N.E.2d 1112 ).
Finally, viewing the evidence in light of the elements of the crimes of criminal possession of a weapon in the second and third degrees as charged to the jury (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 ). The jury was entitled to reject the evidence that the weapons recovered from the vehicle were possessed solely by one of the codefendants, and to find, based upon the automobile presumption (see Penal Law § 220.25[1] ), that defendant knowingly possessed those weapons (see People v. Washington, 50 A.D.3d 1539, 1539, 856 N.Y.S.2d 783, lv. denied 11 N.Y.3d 742, 864 N.Y.S.2d 401, 894 N.E.2d 665 ). The jury was also entitled to find, based upon the testimony of the firearms examiner, that the sawed-off shotgun recovered from the vehicle constituted a “firearm” under Penal Law § 265.00(3)(d) (see People v. Tillery, 60 A.D.3d 1203, 1205–1206, 875 N.Y.S.2d 343, lv. denied 12 N.Y.3d 860, 881 N.Y.S.2d 672, 909 N.E.2d 595 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.