SMITH, BENNIE, PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1254
KA 14-00505
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
BENNIE SMITH, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Thomas J.
Miller, J.), rendered January 29, 2014. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the third degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of criminal possession of a controlled
substance in the third degree (Penal Law § 220.16 [1]). Defendant
contends that County Court erred in refusing to suppress evidence and
dismiss the indictment because the evidence was obtained pursuant to a
search warrant that was based, in part, upon communications
intercepted under improperly issued eavesdropping warrants (see CPL
700.15), and the People failed to provide copies of the eavesdropping
warrants and accompanying applications within 15 days after
arraignment (see CPL 700.70). Inasmuch as defendant failed to seek
suppression of the evidence on those grounds, his contention is not
preserved for our review (see People v Romero, 120 AD3d 947, 949, lv
denied 24 NY3d 1004; People v DePonceau, 96 AD3d 1345, 1346, lv denied
19 NY3d 1025; People v Espiritusanto, 4 AD3d 826, 826, lv denied 2
NY3d 799). We decline to exercise our power to review his contention
as a matter of discretion in the interest of justice (see CPL 470.15
[3] [c]).
We reject defendant’s further contention that defense counsel was
ineffective for failing to seek suppression by challenging the
eavesdropping warrants. With respect to challenging the warrants as
improperly issued, we conclude that “[t]here can be no denial of
effective assistance of trial counsel arising from counsel’s failure
to ‘make a motion . . . that has little or no chance of success’ ”
-2- 1254
KA 14-00505
(People v Caban, 5 NY3d 143, 152). Even assuming, arguendo, that
defendant has a colorable claim that the People violated the notice
requirements of CPL 700.70, we reject defendant’s claim that defense
counsel was ineffective for failing to seek suppression of the
evidence on that ground inasmuch as defendant made no showing that
such failure “ ‘was not premised on strategy’ ” (People v Carver, 27
NY3d 418, 421).
Finally, we reject defendant’s contention that the sentence is
unduly harsh and severe.
Entered: December 23, 2016 Frances E. Cafarell
Clerk of the Court