Opinion
856 KA 17-01723
11-19-2021
The PEOPLE of the State of New York, Respondent, v. Lesean FOUCHA, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ) and criminal possession of stolen property in the fourth degree (§ 165.45 [5]), defendant contends that County Court erred in instructing the jury on the automobile presumption set forth in Penal Law § 265.15 (3). Inasmuch as defendant did not oppose the requested instruction or object to the instruction as given, he failed to preserve that contention for our review (see People v. Ealey , 176 A.D.3d 735, 735, 110 N.Y.S.3d 124 [2d Dept. 2019], lv denied 34 N.Y.3d 1077, 116 N.Y.S.3d 171, 139 N.E.3d 829 [2019] ; see also People v. Boyd , 59 A.D.3d 1001, 1002, 872 N.Y.S.2d 683 [4th Dept. 2009], lv denied 12 N.Y.3d 814, 881 N.Y.S.2d 21, 908 N.E.2d 929 [2009] ). Considering that the automobile presumption set forth in section 265.15 (2), which is not subject to the exceptions applicable to section 265.15 (3), was clearly appropriate here because the vehicle defendant was operating was stolen, 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] ).
To the extent that defendant contends that he was denied effective assistance of counsel based on defense counsel's failure to object to the instruction, we conclude that defendant did not meet his burden of showing " ‘the absence of strategic or other legitimate explanations for counsel's challenged [in]action[ ]’ " ( People v. Lopez-Mendoza , 33 N.Y.3d 565, 572, 106 N.Y.S.3d 266, 130 N.E.3d 862 [2019] ; see People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ). Indeed, defense counsel may have had a strategic reason for not objecting to the given instruction inasmuch as the language of the more appropriate presumption in Penal Law § 265.15 (2) " ‘might not have been entirely helpful to the defense’ " ( People v. Colon , 196 A.D.3d 1043, 1047, 149 N.Y.S.3d 732 [4th Dept. 2021], lv denied 37 N.Y.3d 1026, 153 N.Y.S.3d 416, 175 N.E.3d 442 [2021] ).
Contrary to defendant's further contentions, the conviction is supported by legally sufficient evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ) and, upon viewing the evidence in light of the elements of the crimes 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 [2007] ), we further 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 ).
Finally, defendant contends that the court erred in refusing to adjudicate him a youthful offender, and he asks this Court to exercise its interest of justice jurisdiction to adjudicate him a youthful offender. Defendant was convicted of an armed felony offense and thus could have been deemed an eligible youth had the court found certain mitigating circumstances or determined that his role in the crime was relatively minor (see CPL 720.10 [3] [i], [ii] ; People v. Meridy , 196 A.D.3d 1, 6-7, 147 N.Y.S.3d 287 [4th Dept. 2021], lv denied 37 N.Y.3d 973, 150 N.Y.S.3d 698, 172 N.E.3d 810 [2021] ). In declining to adjudicate defendant a youthful offender, the court set forth its reasoning, concluding that there were no mitigating factors bearing on manner in which the crime was committed and that, although defendant was not the sole participant in the crime, his participation was not relatively minor. Under the circumstances, we conclude that the court did not abuse its discretion in declining to adjudicate defendant to be a youthful offender (see People v. Jones , 166 A.D.3d 1479, 1480, 88 N.Y.S.3d 318 [4th Dept. 2018], lv denied 32 N.Y.3d 1205, 99 N.Y.S.3d 205, 122 N.E.3d 1118 [2019]; People v. Dukes , 156 A.D.3d 1443, 1443, 65 N.Y.S.3d 828 [4th Dept. 2017], lv denied 31 N.Y.3d 983, 77 N.Y.S.3d 661, 102 N.E.3d 438 [2018] ; see generally People v. Middlebrooks , 25 N.Y.3d 516, 526-527, 14 N.Y.S.3d 296, 35 N.E.3d 464 [2015] ), and we perceive no basis for this Court to exercise our interest of justice jurisdiction to adjudicate defendant to be a youthful offender (see People v. Quinones , 140 A.D.3d 1693, 1694, 34 N.Y.S.3d 294 [4th Dept. 2016], lv denied 28 N.Y.3d 935, 40 N.Y.S.3d 363, 63 N.E.3d 83 [2016] ; People v. Lewis , 128 A.D.3d 1400, 1400-1401, 7 N.Y.S.3d 800 [4th Dept. 2015], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015] ; see generally People v. Keith B.J. , 158 A.D.3d 1160, 1160, 70 N.Y.S.3d 291 [4th Dept. 2018] ).