Opinion
367 KA 13-00725
03-27-2015
The PEOPLE of the State of New York, Respondent, v. John E. HOLLAND, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Jeremy V. Murray of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Jeremy V. Murray of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him following a nonjury trial of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06[5] ) and criminally using drug paraphernalia in the second degree (§ 220.50[3] ). Defendant failed to preserve for our review his contention that County Court should have suppressed his statement to the police as involuntary based upon alleged coercion by the police inasmuch as he did not move to suppress the statement on that ground (see People v. Lewis, 124 A.D.3d 1389, 1390, 999 N.Y.S.2d 661 ; People v. Woodard, 96 A.D.3d 1619, 1620, 946 N.Y.S.2d 778, lv. denied 19 N.Y.3d 1030, 953 N.Y.S.2d 563, 978 N.E.2d 115 ). In any event, we note that “[t]here is no indication in the record that defendant's statement[ ][was] not voluntarily made” (People v. Topolski, 28 A.D.3d 1159, 1160, 813 N.Y.S.2d 595, lv. dismissed 6 N.Y.3d 898, 817 N.Y.S.2d 633, 850 N.E.2d 680, lv. denied 7 N.Y.3d 764, 819 N.Y.S.2d 889, 853 N.E.2d 260, reconsideration denied 7 N.Y.3d 795, 821 N.Y.S.2d 825, 854 N.E.2d 1289 ; see People v. Kirton, 36 A.D.3d 1011, 1012, 827 N.Y.S.2d 352, lv. denied 8 N.Y.3d 947, 836 N.Y.S.2d 557, 868 N.E.2d 240 ). Contrary to the further contention of defendant, “[t]he record of the suppression hearing supports the court's determination that defendant knowingly, voluntarily and intelligently waived his Miranda rights before making the statement” (People v. Irvin, 111 A.D.3d 1294, 1295, 974 N.Y.S.2d 214, lv. denied 24 N.Y.3d 1044, 998 N.Y.S.2d 314, 23 N.E.3d 157 ; see People v. Sanders, 74 A.D.3d 1896, 1896, 903 N.Y.S.2d 638 ). Defendant further contends that the evidence is legally insufficient to establish his constructive possession of cocaine and drug paraphernalia found in the bedroom of his girlfriend's residence. We reject that contention (see People v. Patterson, 13 A.D.3d 1138, 1139, 787 N.Y.S.2d 531, lv. denied 4 N.Y.3d 801, 795 N.Y.S.2d 177, 828 N.E.2d 93 ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). A detective testified that defendant matched the description of a man who was reportedly selling cocaine out of the residence and, upon executing a search warrant for the residence, the police found cocaine and drug paraphernalia in a dresser drawer that also contained defendant's New York State benefit card and a prescription in his name. Further, defendant's girlfriend testified that defendant spent three or four nights a week at her home, and that he kept clothing and shoes in her bedroom. The evidence is thus legally sufficient to establish defendant's constructive possession of the cocaine (see People v. Holley, 67 A.D.3d 1438, 1439, 888 N.Y.S.2d 832, lv. denied 14 N.Y.3d 801, 899 N.Y.S.2d 135, 925 N.E.2d 939 ; People v. Dorney, 35 A.D.3d 1032, 1033–1034, 825 N.Y.S.2d 590, lv. denied 8 N.Y.3d 921, 834 N.Y.S.2d 512, 866 N.E.2d 458 ; People v. Lopez, 112 A.D.2d 739, 739–740, 492 N.Y.S.2d 234 ). In addition, viewing the evidence in light of the elements of the crimes 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 ), we conclude that the verdict is not against the weight of the evidence (see People v. Archie, 78 A.D.3d 1560, 1561–1562, 910 N.Y.S.2d 817, lv. denied 16 N.Y.3d 856, 923 N.Y.S.2d 418, 947 N.E.2d 1197 ; Patterson, 13 A.D.3d at 1139, 787 N.Y.S.2d 531 ; see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We also reject defendant's contention that he was denied effective assistance of counsel. It is well settled that, “[t]o prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations” for defense counsel's allegedly deficient conduct (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ; see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ), and defendant failed to meet that burden. Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we 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 ). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.