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

774
KA 11-00357
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

JUSTIN T. WOODARD, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (David
D. Egan, J.), rendered May 14, 2009. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree and
attempted robbery in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of murder in the second degree (Penal Law §
125.25 [3] [felony murder]) and attempted robbery in the first degree
(§§ 110.00, 160.15 [2]) in connection with the shooting death of the
victim by one or both of the codefendants. Defendant contends that
Supreme Court erred in refusing to instruct the jury on the
affirmative defense to felony murder (§ 125.25 [3]), on the ground
that there was no evidence to support a determination that defendant
knew that the codefendants’ guns were loaded. We reject that
contention (see People v Cox, 21 AD3d 1361, 1363, lv denied 6 NY3d
753). The evidence established that defendant willingly drove the
codefendants from Elmira to Rochester for the express purpose of
robbing the victim and that defendant knew that the codefendants had
guns with them for that purpose. Thus, when viewing the evidence in
the light most favorable to defendant (see People v White, 79 NY2d
900, 903), we conclude that the evidence does not support the
affirmative defense (see People v Samuel, 88 AD3d 1020, 1021, lv
denied 18 NY3d 861; cf. People v Cable, 96 AD2d 251, 260-261, revd on
other grounds sub nom. Matter of Anthony M., 63 NY2d 270).

     Defendant failed to preserve for our review his contention that
the court erred in refusing to permit defense counsel to pursue
questioning at the suppression hearing with respect to whether
defendant’s arrest was based upon probable cause, because defendant
did not move to suppress evidence on that ground (see People v Mobley,
49 AD3d 1343, 1343-1344, lv denied 11 NY3d 791). Defendant also
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                                                         KA 11-00357

failed to preserve for our review his contention that the court abused
its discretion and denied defendant his constitutional rights by
denying his motion pursuant to CPL 710.40 (4) to reopen the
suppression hearing on the issue whether the arrest was based upon
probable cause. Instead, defendant sought to reopen the hearing based
upon his contention that he invoked his right to counsel when he was
arrested in Elmira, before being transported to meet with police
officers from the Rochester Police Department (see Mobley, 49 AD3d at
1343-1344). “Because defendant had knowledge of the facts surrounding
his arrest, those facts may not be considered additional pertinent
facts . . . discovered by the defendant which he could not have
discovered with reasonable diligence before the determination of the
motion” (People v Simon, 222 AD2d 1117, 1117, lv denied 87 NY2d 977,
rearg denied 88 NY2d 854 [internal quotation marks omitted]; see CPL
710.40 [4]). In any event, inasmuch as evidence at the suppression
hearing established that defendant had been identified in a photo
array as a participant in the crimes prior to his arrest, we conclude
that the arrest was based upon probable cause (see People v Dumbleton,
67 AD3d 1451, 1452, lv denied 14 NY3d 770).

     Defendant also failed to preserve for our review his contention
that the court erred in permitting the People to use his grand jury
testimony in their direct case, in contravention of a cooperation
agreement defendant had signed (see CPL 470.05 [2]). In any event, we
conclude that any error is harmless inasmuch as the evidence is
overwhelming and there is not a significant probability that he would
have been acquitted if the alleged error had not occurred (see People
v Crimmins, 36 NY2d 230, 241-242). Defendant’s statement to the
police, which was consistent with his grand jury testimony, was also
admitted in evidence, and it was corroborated by the testimony of an
eyewitness and by physical evidence (see generally People v Faust, 73
NY2d 828, 829, rearg denied 73 NY2d 995).

     We reject defendant’s contention that he was deprived of
effective assistance of counsel. The failure to provide a specific
basis for a trial order of dismissal that had no chance of success
does not constitute ineffective assistance of counsel (see People v
Horton, 79 AD3d 1614, 1616, lv denied 16 NY3d 859). Indeed, defendant
does not contend on appeal that the evidence is legally insufficient
to support the conviction (see id.). Further, defendant has failed to
demonstrate that a motion to suppress his statement based on the lack
of probable cause for his arrest, if made, would have been successful,
and thus he has failed to establish that defense counsel was
ineffective for failing to make the motion (see People v Borcyk, 60
AD3d 1489, 1490, lv denied 12 NY3d 923). Defendant’s remaining
contentions with respect to defense counsel’s performance either are
outside the record and thus not reviewable on direct appeal (see
People v Slater, 61 AD3d 1328, 1329, lv denied 13 NY3d 749), or they
are without merit (see generally People v Baldi, 54 NY2d 137, 147).

     Finally, in light of his willing participation in the plan to rob
the victim and his knowledge that the codefendants both had guns, we
reject defendant’s contention that the sentence is unduly harsh and
severe.
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                                          KA 11-00357




Entered:   June 15, 2012         Frances E. Cafarell
                                 Clerk of the Court
