People v. Hailey, 584 KA 13-01493

• Decision Date: 01 May 2015
• Docket Number: 584 KA 13-01493
• Parties: The PEOPLE of the State of New York, Respondent, v. Antoine HAILEY, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 1415

7 N.Y.S.3d 808

2015 N.Y. Slip Op. 03715

The PEOPLE of the State of New York, Respondent

v.Antoine HAILEY, Defendant–Appellant.

584 KA 13-01493

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

May 1, 2015.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Daniel J. Punch of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, SCONIERS, AND VALENTINO, JJ.

OpinionMEMORANDUM:

On appeal from a judgment convicting him following a nonjury trial of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ), defendant contends that the minimal inquiry of Supreme Court failed to establish that defendant understood the critical right he was waiving when executing the waiver of the right to a jury trial. Inasmuch as defendant did not challenge the adequacy of the allocution related to that waiver, he failed to preserve for our review his challenge to the sufficiency of the court's inquiry (see People v. Lumpkins, 11 A.D.3d 563, 564, 782 N.Y.S.2d 804, lv. denied 4 N.Y.3d 746, 790 N.Y.S.2d 658, 824 N.E.2d 59 ; see also People v. White, 43 A.D.3d 1407, 1407, 842 N.Y.S.2d 661, lv. denied

9 N.Y.3d 1010, 850 N.Y.S.2d 398, 880 N.E.2d 884 ; see generally People v. Johnson, 51 N.Y.2d 986, 987, 435 N.Y.S.2d 713, 416 N.E.2d 1048 ). In any event, that challenge lacks merit. “Defendant waived his right to a jury trial in open court and in writing in accordance with the requirements of N.Y. Constitution, art. I, § 2 and CPL 320.10(2)..., and the record establishes that defendant's waiver was knowing, voluntary and intelligent” (People v. Wegman, 2 A.D.3d 1333, 1334, 769 N.Y.S.2d 682, lv. denied 2 N.Y.3d 747, 778 N.Y.S.2d 473, 810 N.E.2d 926 ; see People v. Dixon, 50 A.D.3d 1519, 1520, 856 N.Y.S.2d 383, lv. denied 10 N.Y.3d 958, 863 N.Y.S.2d 142, 893 N.E.2d 448 ; cf. People v. Davidson, 136 A.D.2d 66, 67–70, 525 N.Y.S.2d 855 ; see generally People v. Smith, 6 N.Y.3d 827, 828, 817 N.Y.S.2d 575, 850 N.E.2d 622, cert. denied 548 U.S. 905, 126 S.Ct. 2971, 165 L.Ed.2d 953 ).

Defendant further contends that the conviction is not supported by legally sufficient evidence and that the verdict is against the weight of the evidence. With respect to the legal sufficiency of the evidence, defendant failed to preserve for our review his contention that the firearm was not operable because his motion for a trial order of dismissal was not specifically directed at that alleged deficiency in the People's proof (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). In any event, we conclude that the evidence is legally sufficient to establish the operability of the firearm. Although the barrel of the firearm was loose and the loading gate would not remain closed, the People presented the testimony of the firearms examiner establishing that neither fact affected the operability of the firearm itself (see People v. Cavines, 70 N.Y.2d 882, 883, 524 N.Y.S.2d 178, 518 N.E.2d 1170 ; cf. People v. Shaffer, 66 N.Y.2d 663, 664, 495 N.Y.S.2d 965, 486 N.E.2d 823 ). Indeed, the firearm was operational when the firearms examiner test-fired the firearm with the ammunition that had been loaded in the firearm at the time it was recovered (see Penal Law § 265.00 [15 ] ).

We further conclude that the conviction is supported by legally sufficient evidence that defendant possessed the firearm (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). The People presented the testimony of an eyewitness who observed defendant in physical possession of the gun, as well as the testimony of a forensic biologist establishing that defendant “[was] the source of the major portion of the [DNA]” found on the firearm. Indeed, according to the testimony of the forensic biologist, the possibility of randomly selecting an unrelated individual with a matching DNA profile to the major DNA profile found on the firearm was “at least 1 in 13.43 quintillion.” Finally, the evidence presented at trial established that the firearm was located in ceiling tiles directly above the area of the residence where defendant had been seated when the police entered the residence, and that no one else in the residence had been seated near defendant.

Contrary to defendant's contention, the testimony of the eyewitness was not incredible as a matter of law, i.e., “impossible of belief because it [was] manifestly untrue, physically impossible, contrary to experience, or self-contradictory” (People v. Errington, 121 A.D.3d 1553, 1555, 993 N.Y.S.2d 839 [internal quotation marks omitted]; see People v. Ponzo, 111 A.D.3d 1347, 1348, 975 N.Y.S.2d 274 ; People v. Myers, 87 A.D.3d 826, 827, 928 N.Y.S.2d 407, lv. denied 17 N.Y.3d 954, 936 N.Y.S.2d 80, 959 N.E.2d 1029 ). Moreover, any inconsistencies in the testimony of the police officers did not concern material elements of the crime charged and were “not so substantial as to render the verdict against the weight of the evidence” (People v. Bailey, 90 A.D.3d 1664, 1666, 935 N.Y.S.2d 822, lv. denied 19 N.Y.3d 861, 947 N.Y.S.2d 410, 970 N.E.2d 433 ; see People v. Hightower, 286 A.D.2d 913, 915, 731 N.Y.S.2d 125, lv. denied 97 N.Y.2d 656, 737 N.Y.S.2d 57, 762 N.E.2d 935 ). We thus conclude that, upon viewing the evidence in light of the elements of the crime 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 ), the verdict is not against the weight of the evidence (see Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

We reject defendant's further contention that he was denied effective assistance of counsel based on defense counsel's failure to pursue a motion to suppress the firearm. It is well settled that “[a] defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success” (People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883, rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 ; see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ). “Where, as here, a defendant challenges the effectiveness of counsel based on counsel's failure to make certain motions, the defendant must establish that the motions, if made, ‘would have been successful and that counsel otherwise failed to provide meaningful representation’ ” (People v. Clark, 6 A.D.3d 1066, 1067, 776 N.Y.S.2d 656, lv. denied3 N.Y.3d 638, 782 N.Y.S.2d 409, 816 N.E.2d 199 ; see People v. Patterson, 115 A.D.3d 1174, 1175–1176, 982 N.Y.S.2d 234, lv. denied 23 N.Y.3d 1066, 994 N.Y.S.2d 325, 18 N.E.3d 1146 ). Here, defendant failed to meet his burden. The record establishes that defendant “had no...