Opinion
491 KA 11-00315
05-08-2015
The PEOPLE of the State of New York, Respondent, v. Marlo J. BLOCKER, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a controlled substance in the first degree (Penal Law § 220.21[1] ), criminal possession of a controlled substance in the third degree (§ 220.16[1] ) and operating a motor vehicle without stop lamps (Vehicle and Traffic Law § 375[40][b] ). Contrary to defendant's contention, County Court did not abuse its discretion in denying his request for an adverse inference instruction concerning the People's failure to preserve the motor vehicle that was driven by defendant at the time of his arrest (see generally People v. Perkins, 124 A.D.3d 915, 915–916, 2 N.Y.S.3d 220 ). The record establishes that, at the time of defendant's arrest, the vehicle was towed to an impound lot but was not held by the police as evidence. The record further establishes that defendant was the registered owner of the vehicle, and thus that defendant or his authorized representative could have picked up the vehicle from the impound lot at any time. The vehicle, however, went unclaimed and was sold at auction approximately three weeks after defendant was indicted and two weeks after he appeared with counsel at his arraignment on the indictment. We therefore conclude that defendant was not entitled to an adverse inference instruction because the record establishes that defendant had the opportunity to recover the vehicle and inspect it before it was sold at auction (cf. People v. Handy, 20 N.Y.3d 663, 669, 966 N.Y.S.2d 351, 988 N.E.2d 879 ; People v. John, 288 A.D.2d 848, 849, 732 N.Y.S.2d 505, lv. denied 97 N.Y.2d 705, 739 N.Y.S.2d 106, 765 N.E.2d 309 ).
We reject defendant's contention that trial counsel was ineffective for failing to move to reopen the suppression hearing (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). “Inasmuch as a motion to reopen the suppression hearing would not have been successful, defendant was not denied effective assistance of counsel when his ... attorney did not make such a motion” (People v. Crespo, 117 A.D.3d 1538, 1539, 985 N.Y.S.2d 378, lv. denied 23 N.Y.3d 1035, 993 N.Y.S.2d 249, 17 N.E.3d 504 ; see People v. Carver, 124 A.D.3d 1276, 1278–1279, 999 N.Y.S.2d 632 ).
Contrary to defendant's contention, the court properly exercised its discretion in allowing the prosecutor to introduce evidence that defendant was arrested pursuant to an outstanding warrant inasmuch as “police credibility was [a] central issue in the case [and] this background material was necessary to complete the narrative of events leading to defendant's arrest and to explain the actions of the police” (People v. Childs, 8 A.D.3d 116, 116, 778 N.Y.S.2d 272, lv. denied 3 N.Y.3d 672, 784 N.Y.S.2d 10, 817 N.E.2d 828 ; see generally People v. Brown, 277 A.D.2d 974, 974, 716 N.Y.S.2d 504, lv. denied 96 N.Y.2d 756, 725 N.Y.S.2d 282, 748 N.E.2d 1078 ). Finally, we reject defendant's further contention that the court abused its discretion in denying defendant's request at sentencing for substitution of counsel (see People v.
Porto, 16 N.Y.3d 93, 100–101, 917 N.Y.S.2d 74, 942 N.E.2d 283 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.