Opinion
2013-10-4
The PEOPLE of the State of New York, Respondent, v. Robert L. HICKS, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ), defendant contends that the verdict is against the weight of the evidence because he had only temporary innocent possession of the weapon. We reject that contention. Although a person may be found to have had temporary and lawful possession of a weapon if he or she took the weapon from an assailant in the course of a fight ( see People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463), here the jury reasonably could have found that defendant, after taking the gun at issue from another person, retained possession of it despite the opportunity to turn it over to lawful authorities ( see People v. Snyder, 73 N.Y.2d 900, 901–902, 539 N.Y.S.2d 285, 536 N.E.2d 614;see also People v. Gonzalez, 262 A.D.2d 1061, 1061–1062, 693 N.Y.S.2d 362,lv. denied93 N.Y.2d 1018, 697 N.Y.S.2d 577, 719 N.E.2d 938). Specifically, the record establishes that defendant fled from the police on a bicycle and disposed of the gun in a garbage can. Defendant's purposeful avoidance of the police is “utterly at odds with [his] claim of innocent possession ... temporarily and incidentally [resulting] from ... disarming a wrongful possessor” ( Snyder, 73 N.Y.2d at 902, 539 N.Y.S.2d 285, 536 N.E.2d 614 [internal quotation marks omitted]; see Gonzalez, 262 A.D.2d at 1062, 693 N.Y.S.2d 362). Thus, viewing the evidence in light of the elements of the crime 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), we conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Contrary to defendant's contention, “defense counsel's failure to make a specific motion for a trial order of dismissal at the close of the People's case [does] not constitute ineffective assistance of counsel, inasmuch as any such motion would have had no chance of success” ( People v. Horton, 79 A.D.3d 1614, 1616, 913 N.Y.S.2d 463,lv. denied16 N.Y.3d 859, 923 N.Y.S.2d 421, 947 N.E.2d 1200;see generally People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883,rearg. denied3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671). Indeed, we note that defendant does not contend on appeal that the evidence at trial is legally insufficient to support the conviction. Defendant also failed to demonstrate a lack of strategic or other legitimate explanations for defense counsel's alleged ineffectiveness in failing to request a charge on the lesser included offense of criminal possession of a weapon in the fourth degree (Penal Law § 265.01[1] ), or in failing to request a missing witness charge ( see People v. Benevento, 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584). Further, “[a]bsent proof that such witness would have provided noncumulative testimony which was favorable to [the prosecution], there was no basis for such a charge” (People v. Myers [appeal No. 1], 87 A.D.3d 826, 828, 928 N.Y.S.2d 407,lv. denied17 N.Y.3d 954, 936 N.Y.S.2d 80, 959 N.E.2d 1029 [internal quotation marks omitted] ). We have reviewed the remaining alleged deficiencies in defense counsel's performance and conclude that defendant received meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
We reject defendant's further contention that the photo array was unduly suggestive ( see generally People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608,cert. denied498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70). The individuals depicted in the photo array were “sufficiently similar in appearance so that the viewer's attention [was] not drawn to any one photograph in such a way as to indicate that the police were urging a particular selection” ( People v. Quinones, 5 A.D.3d 1093, 1093, 773 N.Y.S.2d 671,lv. denied3 N.Y.3d 646, 782 N.Y.S.2d 417, 816 N.E.2d 207;see Chipp, 75 N.Y.2d at 336, 553 N.Y.S.2d 72, 552 N.E.2d 608). Although we conclude upon our review of a copy of the photo array that defendant appears to have a darker skin tone than the other African–American males depicted therein, we note that the witnesses were instructed that the photographs in the array “may not depict the true complexion of a person.” Moreover, “differences in skin tone alone will not render a lineup unduly suggestive” ( People v. Fewell, 43 A.D.3d 1293, 1294, 843 N.Y.S.2d 742,lv. denied9 N.Y.3d 1033, 852 N.Y.S.2d 18, 881 N.E.2d 1205,reconsideration denied10 N.Y.3d 862, 860 N.Y.S.2d 489, 890 N.E.2d 252 [internal quotation marks omitted]; see Quinones, 5 A.D.3d at 1093, 773 N.Y.S.2d 671). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.