People v. Watkins

• Decision Date: 30 June 2017
• Citation: 57 N.Y.S.3d 841,151 A.D.3d 1913
• Parties: The PEOPLE of the State of New York, Respondent, v. Samuel J. WATKINS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 1913
57 N.Y.S.3d 841

The PEOPLE of the State of New York, Respondent,
v.
Samuel J. WATKINS, Defendant–Appellant.

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

June 30, 2017.

57 N.Y.S.3d 842

Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Kelly Christine Wolford of Counsel), for Respondent.

PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, TROUTMAN, AND SCUDDER, JJ.

57 N.Y.S.3d 843

MEMORANDUM:

Defendant appeals from a judgment convicting him, upon a jury verdict, of two counts of criminal possession of a weapon in the second degree ( Penal Law § 265.03[1][b] ; [3] ) and one count of criminal possession of marihuana in the third degree (§ 221.20). Defendant contends that Supreme Court should have suppressed tangible evidence, i.e., a firearm and marihuana, that was seized from a parked vehicle occupied by defendant and an acquaintance on the ground that the police conducted an unlawful seizure by blocking the vehicle without the requisite reasonable suspicion of criminal behavior. Defendant's contention is not preserved for our review inasmuch as he failed to raise that specific contention in his motion papers or at the suppression hearing as a ground for suppressing the tangible evidence (see People v. Witt, 129 A.D.3d 1449, 1449, 11 N.Y.S.3d 767, lv. denied 26 N.Y.3d 937, 17 N.Y.S.3d 100, 38 N.E.3d 846 ), nor did the court expressly decide the question raised on appeal (see CPL 470.05[2] ; People v. Graham, 25 N.Y.3d 994, 997, 10 N.Y.S.3d 172, 32 N.E.3d 387 ; People v. Turriago, 90 N.Y.2d 77, 83–84, 659 N.Y.S.2d 183, 681 N.E.2d 350, rearg. denied 90 N.Y.2d 936, 664 N.Y.S.2d 274, 686 N.E.2d 1369 ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6 ][a] ).

Defendant further contends that defense counsel was ineffective for failing to seek suppression of the tangible evidence on the ground that the ostensible blocking of the vehicle constituted a seizure requiring reasonable suspicion. We reject that contention. It is well established that "a showing that [defense] counsel failed to make a particular pretrial motion generally does not, by itself, establish ineffective assistance of counsel" ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ). "To prevail on his claim, defendant must demonstrate the absence of strategic or other legitimate explanations for counsel's failure to pursue colorable claims," and "[o]nly in the rare case will it be possible, based on the trial record alone, to deem counsel ineffective for failure to pursue a suppression motion" ( People v. Carver, 27 N.Y.3d 418, 420, 33 N.Y.S.3d 857, 53 N.E.3d 734 [internal quotation marks omitted]; see Rivera, 71 N.Y.2d at 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ). Here, defendant failed to demonstrate the absence of legitimate explanations for defense counsel's decision not to pursue suppression on the ground advanced by defendant on appeal (see generally Rivera, 71 N.Y.2d at 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ). We have reviewed defendant's remaining claims of ineffective assistance of defense counsel during trial and conclude that they lack merit (see generally Carver, 27 N.Y.3d at 422, 33 N.Y.S.3d 857, 53 N.E.3d 734 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).

We reject defendant's contention that the verdict is against the weight of the evidence with respect to the two counts of criminal possession of a weapon in the second degree. Viewing the evidence presented at trial 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 ; see generally People v. Santiago, 134 A.D.3d 472, 473, 22 N.Y.S.3d 175, lv. denied 27 N.Y.3d 1006, 38 N.Y.S.3d 115, 59 N.E.3d 1227 ), we conclude that, although a different result would not have been unreasonable, the jury did not fail to give the evidence the weight it should be accorded (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Contrary to defendant's contention, " ‘the verdict, based on the applicability

57 N.Y.S.3d 844

of the automobile presumption ..., is not against the weight of the evidence’ " ( People v. Smith, 134 A.D.3d 1568, 1569, 22 N.Y.S.3d 783 ; see People v. Blocker, 132 A.D.3d 1287, 1288, 17 N.Y.S.3d 227, lv. denied 27 N.Y.3d 992, 38 N.Y.S.3d 103, 59 N.E.3d...