People v. Thomas , 913 N.Y.S.2d 608 ( 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.

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 [1]). 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 [2009], lv denied 12 NY3d 923 [2009]). We further conclude that the sentence is not unduly harsh or severe. Present — Centra, J.P., Peradotto, Carni and Sconiers, JJ.