People v. Jackson

• Decision Date: 05 July 2013
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert JACKSON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 1079

968 N.Y.S.2d 789

2013 N.Y. Slip Op. 05136

The PEOPLE of the State of New York, Respondent,

v.Robert JACKSON, Defendant–Appellant.

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

July 5, 2013.

D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Defendant–Appellant.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.

PRESENT: CENTRA, J.P., FAHEY, CARNI, AND SCONIERS, JJ.

MEMORANDUM:

On appeal from a judgment convicting him, upon a jury verdict, of criminal possession of a controlled substance in the first degree (Penal Law § 220.21[1] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ), defendant contends that County Court erred in refusing to suppress physical evidence seized after the police stopped a vehicle in which he was a passenger because the police improperly stopped the vehicle. We reject that contention. “The People established the reliability and basis of knowledge of the informant who provided the police with information concerning defendant's drug activities ..., and the police had reasonable suspicion to stop defendant's vehicle based on that information” ( People v. Dwyer, 73 A.D.3d 1467, 1468, 902 N.Y.S.2d 271,lv. denied15 N.Y.3d 851, 909 N.Y.S.2d 28, 935 N.E.2d 820;see People v. Porter, 101 A.D.3d 44, 47–48, 952 N.Y.S.2d 678,lv. denied20 N.Y.3d 1064, 962 N.Y.S.2d 615, 985 N.E.2d 925).

Defendant's contentions that his trial attorney had a conflict of interest and that he was ineffective due to that conflict concern matters outside the record and thus must be raised by way of a motion pursuant to CPL article 440 ( see People v. Pagan, 12 A.D.3d 1143, 1144, 784 N.Y.S.2d 815,lv. denied4 N.Y.3d 766, 792 N.Y.S.2d 10, 825 N.E.2d 142;People v. Dunn, 261 A.D.2d 940, 941, 690 N.Y.S.2d 349,lv. denied94 N.Y.2d 822, 702 N.Y.S.2d 592, 724 N.E.2d 384). Defendant's contention that evidence of his postarrest silence was improperly admitted is not preserved for our review ( see People v. Tarbell, 167 A.D.2d 902, 902, 563 N.Y.S.2d 698,lv. denied77 N.Y.2d 883, 568 N.Y.S.2d 925, 571 N.E.2d 95). In any event, “[a]though improper, the unsolicited reference to defendant's invocation of the right to [remain silent] does not constitute a ‘pervasive pattern of misconduct so egregious as to deprive defendant of a fair trial’ ” ( People v. Beers, 302 A.D.2d 898, 899, 753 N.Y.S.2d 792,lv. denied99 N.Y.2d 652, 760 N.Y.S.2d 116, 790 N.E.2d 290). Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's contention that the verdict is against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Defendant further contends that his Sixth Amendment right to confront his accusers was violated by the admission in evidence of testimony concerning a latent fingerprint that was processed and photographed by a technician who did not testify at trial ( see generally Crawford v. Washington, 541 U.S. 36, 50–54, 124 S.Ct. 1354, 158 L.Ed.2d 177). We reject that contention. The technician who processed and photographed the fingerprint did not compare the latent print to the fingerprints of defendant or any other suspect. Thus, the technician's findings were not testimonial because the latent fingerprint, “standing alone, shed[s] no light on the guilt of the accused in the absence of an expert's opinion that the [latent fingerprint] match[es] a known sample” ( People v. Rawlins, 10 N.Y.3d 136, 159, 855 N.Y.S.2d 20, 884 N.E.2d 1019;see generally Williams v. Illinois, ––– U.S. ––––, ––––, 132 S.Ct. 2221, 2243–2244, 183 L.Ed.2d 89;People v. Pealer, 20 N.Y.3d 447, 455, 962 N.Y.S.2d 592, 985 N.E.2d 903). Moreover, the analyst who determined that the latent print matched one of defendant's fingerprints in fact testified at trial and was available for cross-examination. Therefore, defendant's right to confront witnesses against him was not violated ( see Rawlins, 10 N.Y.3d at 159, 855 N.Y.S.2d 20, 884 N.E.2d 1019;People v. Hamilton, 66 A.D.3d 921, 922, 887 N.Y.S.2d 261,lv. denied13 N.Y.3d 907, 895 N.Y.S.2d 321, 922 N.E.2d 910).

Defendant contends that he was denied the right to effective assistance of counsel because defense counsel failed to make a detailed motion for a trial order of dismissal at the close of the People's proof and failed to renew the motion at the close of defendant's proof. We reject that contention. Defendant failed to demonstrate that such a motion would have been meritorious, and “there is no denial of effective assistance based on the failure to ‘make a motion or argument that has little or no chance of success' ” ( People v. Crump, 77 A.D.3d 1335, 1336, 909 N.Y.S.2d 252,lv. denied16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883,rearg. denied3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671).

Defendant further contends that he was denied a fair trial based on prosecutorial misconduct during summation. Defendan...