        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

385
KA 06-03135
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARCUS D. HOGAN, DEFENDANT-APPELLANT.


SHIRLEY A. GORMAN, BROCKPORT, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered August 4, 2006. The judgment
convicted defendant, after a nonjury trial, of criminal possession of
a controlled substance in the third degree and 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 that convicted him
following a nonjury trial of criminal possession of a controlled
substance in the third degree (Penal Law § 220.16 [1]) and criminal
possession of a controlled substance in the fifth degree (§ 220.06
[5]). We reject defendant’s contention that the presumption of
knowing possession set forth in Penal Law § 220.25 (2) was
inapplicable because he was not in proximity to the packaged and
unpackaged drugs and drug trafficking paraphernalia that were found in
open view in the kitchen/living room area of the small apartment in
question (see People v Snow, 225 AD2d 1031, 1031-1032). Upon entering
the apartment, the police observed defendant running from the
kitchen/living room area not more than 15 feet from where the drugs
and drug trafficking paraphernalia were found. Although defendant was
apprehended in a hallway bathroom of the apartment, “proximity is not
limited to the same room” (id. at 1032; see People v Pressley, 294
AD2d 886, 887, lv denied 98 NY2d 712; People v Miranda, 220 AD2d 218,
218, lv denied 87 NY2d 849). Viewing the evidence in light of the
elements of the crimes in this nonjury trial (see People v Danielson,
9 NY3d 342, 349), we conclude that the verdict is not against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495). We reject defendant’s further contention that he was denied
effective assistance of counsel based on his attorney’s failure to
notify him of his right to testify before the grand jury (see People v
Nobles, 29 AD3d 429, 430, lv denied 7 NY3d 792). Defendant also was
                                 -2-                           385
                                                         KA 06-03135

not denied effective assistance of counsel by his attorney’s failure
to make a timely motion to dismiss the indictment based on the
People’s alleged violation of CPL 190.50 (5) (a). That failure,
without more, is insufficient to demonstrate ineffective assistance,
“particularly where defendant failed to demonstrate an absence of
strategic or legitimate reasons for counsel’s failure to pursue this
course of action” (People v Wright, 5 AD3d 873, 874, lv denied 3 NY3d
651; see People v Hibbard, 27 AD3d 1196, 1196-1197, lv denied 7 NY3d
790).




Entered:   June 13, 2014                       Frances E. Cafarell
                                               Clerk of the Court
