Opinion
01-02-2015
The PEOPLE of the State of New York, Respondent, v. Javell FOX, Defendant–Appellant.
Peter J. Digiorgio, Jr., Utica, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
Peter J. Digiorgio, Jr., Utica, for Defendant–Appellant.
Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, WHALEN, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him upon a nonjury verdict of, inter alia, criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ). The charges arose from an incident involving the traffic stop by a police officer of a vehicle in which defendant was a passenger. During the stop, defendant was instructed to exit the vehicle and, while being frisked by a police officer, defendant pushed him and fled. The police officer who stopped the vehicle and an assisting police officer captured defendant and arrested him. After the arrest, the police officers found drugs on the ground where defendant had been standing and under the backseat of the patrol car where defendant had been sitting.
Defendant contends that County Court erred in denying his motion to suppress the above physical evidence inasmuch as the initial frisk was unlawful, which renders the subsequent arrest unlawful and any evidence discovered thereafter by the police inadmissible. We reject that contention. Even assuming, arguendo, that the frisk was unlawful, we conclude that defendant's act of pushing the frisking officer was not “spontaneous and precipitated by the illegality ... [but] was a calculated act not provoked by the unlawful police activity and thus attenuated from it” (People v. Wilkerson, 64 N.Y.2d 749, 750, 485 N.Y.S.2d 981, 475 N.E.2d 448 ; see People v. Stone, 197 A.D.2d 356, 356, 602 N.Y.S.2d 124, lv. denied 82 N.Y.2d 904, 610 N.Y.S.2d 171, 632 N.E.2d 481 ). We therefore conclude that there was probable cause for defendant's subsequent arrest for harassment of the frisking officer (cf. People v. Felton, 78 N.Y.2d 1063, 1064–1065, 576 N.Y.S.2d 89, 581 N.E.2d 1344 ). Consequently, the drugs seized from defendant's person and the backseat of the patrol car were discovered incident to a lawful arrest (see People v. Cooper, 85 A.D.3d 1594, 1595, 926 N.Y.S.2d 777, affd. 19 N.Y.3d 501, 950 N.Y.S.2d 77, 973 N.E.2d 172 ).
We reject defendant's further contention that the evidence is legally insufficient to support the conviction for harassment and resisting arrest. Viewing the evidence in the light most favorable to the People (see generally People v. Khan, 18 N.Y.3d 535, 541, 942 N.Y.S.2d 399, 965 N.E.2d 901 ), we conclude that there is a “valid line of reasoning and permissible inferences” that could rationally lead the court to determine that defendant harassed the arresting officer and resisted arrest (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We reject defendant's contention that he was denied effective assistance of counsel. Initially, we conclude that defendant is not entitled to a reconstruction hearing to determine the contents of a conversation between the court and defense counsel that allegedly concerned privileged attorney-client matters. The court placed a summary of the conversation on the record, and defense counsel agreed to that summary. We conclude that defense counsel was not ineffective for having such a conversation with the court inasmuch as the purpose of the conversation was to ensure that defense counsel did not “breach ... any recognized professional duty” to either defendant or the court (People v. Andrades, 4 N.Y.3d 355, 362, 795 N.Y.S.2d 497, 828 N.E.2d 599 ). With respect to the remaining grounds that defendant raises in support of his contention of ineffective assistance of counsel, we conclude that “the evidence, the law, and the circumstances of [this] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ; see People v. Hall, 106 A.D.3d 1513, 1514, 964 N.Y.S.2d 390, lv. denied 22 N.Y.3d 956, 977 N.Y.S.2d 187, 999 N.E.2d 552 ). To the extent that defendant's claims of ineffective assistance of counsel “involve matters outside the record on appeal ... [they] must be raised by way of a motion pursuant to CPL 440.10 ” (People v. Brown, 120 A.D.3d 1545, 1546, 992 N.Y.S.2d 591 ; see People v. Reed, 115 A.D.3d 1334, 1337, 982 N.Y.S.2d 670, lv. denied 23 N.Y.3d 1024, 992 N.Y.S.2d 807 ).
Finally, defendant's sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.