Opinion
2006-2007 N CR.
Decided July 7, 2011.
Appeal from a judgment of the District Court of Nassau County, First District (Norman St. George, J.), rendered October 20, 2006. The judgment convicted defendant, upon a jury verdict, of criminal possession of marihuana in the fifth degree.
ORDERED that the judgment of conviction is affirmed.
PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ.
Defendant was charged with criminal possession of marihuana in the fifth degree (Penal Law § 221.10). His initial counsel failed to make a pretrial motion to suppress two large bags of marihuana recovered from defendant's vehicle and person. At the jury trial, the People presented evidence establishing that the bags had contained marihuana weighing in excess of 25 grams. The jury found defendant guilty of criminal possession of marihuana in the fifth degree (Penal Law § 221.10). On appeal, defendant contends that he received the ineffective assistance of counsel because his initial counsel never moved to suppress the marihuana recovered from defendant's person and vehicle. We disagree.
Under New York law, "[t]he standard of review applied to a claim of ineffective assistance of counsel is whether, under the circumstances of the case, the defendant received meaningful representation" ( People v Noll, 24 AD3d 688, 688; see People v Baldi, 54 NY2d 137). More specifically, "a defendant alleging ineffective assistance of counsel based on counsel's failure to move to suppress evidence must demonstrate that counsel had no strategic reason for failing to move for suppression" ( People v Noll, 24 AD3d at 688-689) and "prejudice [to] the defense or defendant's right to a fair trial" ( People v Hobot, 84 NY2d 1021, 1024). In doing so, the defendant must present "colorable grounds to challenge the propriety of [his] arrest or seizure of tangible evidence" ( People v Daniels, 35 AD3d 495, 496).
A review of the record indicates that the arresting officer pulled defendant's vehicle over after defendant had failed to signal a right turn. The officer ran a Department of Motor Vehicles check on defendant's driver's license and discovered that it was suspended. The officer asked defendant to exit his vehicle and placed him under arrest. He then "patted [defendant] down for any kind of weapons" and discovered "a clear large bag containing a green, leaf-like substance" in defendant's "inside jacket pocket." Thus, "[h]aving observed defendant drive a vehicle with a suspended license, the officer had probable cause to arrest him" ( People v Chatelain, 65 AD3d 930 [internal citation omitted]) and conduct a search of his person ( id.; see People v Smith, 59 NY2d 454; People v Wylie, 244 AD2d 247). Thereafter, the officer permissibly searched defendant's vehicle in the course of an inventory search, pursuant to established police department procedure ( see People v Buckmon, 293 AD2d 623, 624; People v Brooks, 161 AD2d 655), and found another bag which contained numerous small, yellow, tinted Ziploc bags, each containing marihuana.
In view of the foregoing, we find, based on the record before us, that defendant's initial counsel's failure to seek a pretrial suppression hearing did not deprive defendant "of his right to meaningful representation" ( People v Noll, 24 AD3d at 689) because no "colorable grounds" existed to challenge the validity of defendant's arrest and the consequent search of his person and vehicle ( People v Daniels, 35 AD3d at 496). We note that, while defendant failed to pursue his ineffective assistance of counsel claim under federal law ( see Strickland v Washington, 466 US 668), an analysis pursuant to this standard would yield the same result ( see People v Troche, 81 AD3d 990; People v Alston, 77 AD3d 762).
Defendant's remaining contentions are unpreserved for appellate review.
Accordingly, the judgment of conviction is affirmed.
Tanenbaum, J.P., Molia and Iannacci, JJ., concur.