Filed Date: 6/11/2010
Status: Precedential
Modified Date: 11/1/2024
Appeal from a judgment of the Supreme Court, Cayuga County (Joseph D. Valentino, J.), rendered July 1, 2008. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the fifth 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 fifth degree (Penal Law § 220.06 [5]). The contention of defendant that the evidence is legally insufficient to support the conviction is not preserved for our review (see People v Gray, 86 NY2d 10, 19 [1995]). Although defendant moved for a trial order of dismissal at the close of the People’s
Viewing the evidence in light of the elements of the crime as charged to the jury (see Danielson, 9 NY3d at 349), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The testimony of defendant that he never possessed any cocaine and that he never threw anything beneath the vehicle presented credibility issues for the jury to resolve, and its credibility determinations are entitled to great deference (see generally id.).
Defendant failed to preserve for our review his contention that the warrant obtained by the police to search, inter aha, the vehicle next to which he was standing was not supported by probable cause (see generally People v Kendricks, 23 AD3d 1119 [2005]). In any event, that contention lacks merit. The warrant application was supported by the statements of multiple, experienced confidential informants with a history of reliability, and those statements indicated that the vehicle in question was used in the sale of cocaine. The police confirmed those statements with subsequent investigations and controlled buys. We thus conclude that the People satisfied both prongs of the Aguilar-Spinelli test by establishing that the confidential informants were reliable and had a basis of knowledge for the
Defendant expressly consented to the court’s approval of the Sandoval compromise offered by the People, and thus he waived his contention that the Sandoval ruling constitutes an abuse of discretion (see generally People v Hansen, 95 NY2d 227, 230 n 1 [2000]). In any event, the court properly balanced the probative value of defendant’s prior convictions against the risk of prejudice to defendant (see People v McNair, 45 AD3d 872 [2007], lv denied 10 NY3d 813 [2008]; People v Alston, 27 AD3d 1141, 1142 [2006], lv denied 6 NY3d 892 [2006]; see generally People v Hayes, 97 NY2d 203, 207-208 [2002]).
Defendant further contends that he was denied effective assistance of counsel based on defense counsel’s failure to object to certain testimony and to make various motions and arguments. We reject that contention. Defendant failed to demonstrate that those alleged errors were not strategic in nature (see generally People v Rivera, 71 NY2d 705, 709 [1988]), and mere disagreement with trial strategy is insufficient to establish that defense counsel was ineffective (see People v Knightner, 11 AD3d 1002, 1005 [2004], lv denied 4 NY3d 745 [2004]). Further, “[t]here can be no denial of effective assistance of . . . counsel arising from [defense] counsel’s failure to ‘make a motion or argument that has little or no chance of success’ ” (People v Caban, 5 NY3d 143, 152 [2005]). Viewing the evidence, the law and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Finally, the sentence is not unduly harsh or severe. Present— Martoche, J.P., Fahey, Carni, Sconiers and Green, JJ.