Opinion
2017–09424 Ind. No. 1476/15
05-22-2019
The PEOPLE, etc., Respondent, v. John HINES, Appellant.
Stephen R. Mahler, Kew Gardens, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Kevin C. King and John B. Latella of counsel), for respondent.
Stephen R. Mahler, Kew Gardens, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Kevin C. King and John B. Latella of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed.
We agree with the hearing court's determination declining to suppress physical evidence, as the credible evidence at the suppression hearing established that the police had probable cause to arrest the defendant (see People v. Frederique, 137 A.D.3d 1161, 26 N.Y.S.3d 885 ; People v. Spann, 82 A.D.3d 1013, 918 N.Y.S.2d 588 ). Contrary to the defendant's contention, the testimony of the police witness at the hearing was not incredible, patently tailored to overcome constitutional objections, or otherwise unworthy of belief (see People v. Kelly, 131 A.D.3d 484, 15 N.Y.S.3d 391 ; People v. Glenn, 53 A.D.3d 622, 861 N.Y.S.2d 781 ).
The defendant's contention that he was deprived of the effective assistance of counsel because his trial counsel failed to move to reopen the suppression hearing is without merit. Counsel will not be deemed ineffective for failing to pursue an argument that has little or no chance of success (see People v. Flowers, 28 N.Y.3d 536, 46 N.Y.S.3d 497, 68 N.E.3d 1228 ; People v. Brown, 13 N.Y.3d 332, 341, 890 N.Y.S.2d 415, 918 N.E.2d 927 ; People v. Ennis, 11 N.Y.3d 403, 415, 872 N.Y.S.2d 364, 900 N.E.2d 915 ; People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ). The defendant has not established that the police testimony at the hearing was inconsistent with testimony elicited from other police witnesses at trial, and it is unlikely that the County Court would have granted an application to reopen the suppression hearing or that, if it had done so, it would have suppressed the physical evidence as a result (see People v. Hogue, 166 A.D.3d 1009, 88 N.Y.S.3d 465 ; People v. Meyers, 162 A.D.3d 1074, 80 N.Y.S.3d 125, affd 33 N.Y.3d 1018, 102 N.Y.S.3d 157, 125 N.E.3d 822, 2019 N.Y. Slip Op. 03658 [2019] ). Accordingly, trial counsel was not ineffective for failing to make that application. Moreover, the evidence, the law, and the circumstances of the case, viewed in totality and as of the time of the representation, reveal that trial counsel provided meaningful representation (see People v. Wright, 25 N.Y.3d 769, 779, 16 N.Y.S.3d 485, 37 N.E.3d 1127 ; People v. Caban, 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Berroa, 99 N.Y.2d 134, 138–139, 753 N.Y.S.2d 12, 782 N.E.2d 1148 ; People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of criminal possession of a controlled substance in the third and fifth degrees beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt as to those crimes was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
RIVERA, J.P., AUSTIN, COHEN and IANNACCI, JJ., concur.