Opinion
No. KA 09-00766.
December 30, 2010.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered February 17, 2009. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the fourth degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (SARAH E. RYAN OF COUNSEL), FOR RESPONDENT.
Before: Centra, J.P., Peradotto, Carni and Sconiers, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09). We reject the contention of defendant that he was denied effective assistance of counsel based on defense counsel's failure to move to suppress physical evidence. "Defendant has not shown that a suppression motion, if made, would have been successful and thus has failed to establish that defense counsel was ineffective in failing to make such a motion" ( People v Borcyk, 60 AD3d 1489, 1490, lv denied 12 NY3d 923). We further conclude that the sentence is not unduly harsh or severe.