Opinion
1471 KA 16–01933
12-21-2018
The PEOPLE of the State of New York, Respondent, v. Caron FLEMING, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (LAUREN M. SILVERSTEIN OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (LAUREN M. SILVERSTEIN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ). We reject defendant's contention that Supreme Court erred in refusing to suppress a gun. Defendant failed to establish standing to challenge the seizure of the gun because he did not demonstrate that he had a legitimate expectation of privacy in the place where the gun was found (see People v. Trotter, 224 A.D.2d 1013, 1013, 637 N.Y.S.2d 819 [4th Dept. 1996] ; see generally People v. Sweat, 159 A.D.3d 1423, 1423–1424, 72 N.Y.S.3d 684 [4th Dept. 2018] ). Furthermore, the court properly determined that "defendant's abandonment of the gun was not in response to unlawful police conduct" ( People v. Rozier, 143 A.D.3d 1258, 1259, 39 N.Y.S.3d 340 [4th Dept. 2016] ; see also People v. Brown, 148 A.D.3d 1562, 1564, 48 N.Y.S.3d 865 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ).
Defendant further contends that he was denied effective assistance of counsel because his attorney failed to move to suppress statements defendant made to the police following his arrest. We reject that contention as well. Viewing the evidence, the law, and the circumstances of this case in their totality at the time of the representation, we conclude that counsel provided meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Contrary to defendant's next contention, we conclude that the conviction is based on legally sufficient evidence (see Rozier, 143 A.D.3d at 1259–1260, 39 N.Y.S.3d 340 ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). In addition, 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 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
The sentence is not unduly harsh or severe. We have reviewed defendant's remaining contentions and conclude that none warrants reversal or modification of the judgment.