People v. Blocker

• Decision Date: 02 October 2015
• Docket Number: 1016 KA 10-01037.
• Citation: 132 A.D.3d 1287,17 N.Y.S.3d 227,2015 N.Y. Slip Op. 07121
• Parties: The PEOPLE of the State of New York, Respondent, v. Marlo J. BLOCKER, also known as Marlow, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

132 A.D.3d 1287
17 N.Y.S.3d 227
2015 N.Y. Slip Op. 07121

The PEOPLE of the State of New York, Respondent
v.
Marlo J. BLOCKER, also known as Marlow, Defendant–Appellant.

1016 KA 10-01037.

Supreme Court, Appellate Division, Fourth Department, New York.

Oct. 2, 2015.

17 N.Y.S.3d 228

Shirley A. Gorman, Brockport, for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, WHALEN, AND DeJOSEPH, JJ.

Opinion

MEMORANDUM:

132 A.D.3d 1287

Defendant appeals from a judgment convicting him, upon a jury verdict, of four counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[1][b] ; [3] ), two counts of criminal possession of a weapon in the third degree (§ 265.02[1] ), and a traffic infraction. We reject defendant's contention that he was denied effective assistance of counsel. Defendant failed to demonstrate that the alleged deficiencies in the pretrial suppression motion compromised his defense or his right to a fair trial, inasmuch as County Court addressed his challenge to the legality of the search of his vehicle (see People v. Hobot, 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102 ; People v. Clark, 6 A.D.3d 1066, 1067, 776 N.Y.S.2d 656, lv. denied 3 N.Y.3d 638, 782 N.Y.S.2d 409, 816 N.E.2d 199 ). Defendant's contention that counsel was ineffective in failing to move to sever his trial from that of his codefendant is based on matters outside the record on appeal and therefore must be raised in a motion pursuant to CPL 440.10 (see People v. Fuentes, 52 A.D.3d 1297, 1300, 859 N.Y.S.2d 841, lv. denied 11 N.Y.3d 736, 864 N.Y.S.2d 395, 894 N.E.2d 659 ). Similarly, a motion pursuant to CPL 440.10

132 A.D.3d 1288

is the proper procedural vehicle for defendant to raise his contention that counsel failed to conduct an adequate investigation (see People v. Conway, 118 A.D.3d 1290, 1291, 988 N.Y.S.2d 337, lv. denied 9 N.Y.3d 990, 848 N.Y.S.2d 607, 878 N.E.2d 1023 ). Further, although counsel failed to object to comments by the prosecutor that the People concede supported an improper “safe streets” argument, “it cannot be said that, viewing counsel's representation in totality, such error deprived defendant of meaningful representation” (People v. Brown, 70 A.D.3d 1302, 1304, 894 N.Y.S.2d 700, affd. 17 N.Y.3d 742, 929...