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

1377
KA 09-00863
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RANDOLPH WATSON, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered January 12, 2009. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the second degree and assault in the second degree.

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

     Memorandum: On appeal from a judgment convicting him, upon a
jury verdict, of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [1] [b]) and assault in the second degree (§
120.05 [2]), defendant contends that his statements to the police to
the effect of “I’ll show you the gun,” made after he had invoked his
right to counsel, were not spontaneous and should have been
suppressed. We reject that contention. Although defendant did not
specifically contend before Supreme Court that it had applied the
incorrect legal standard in concluding that his statements were
spontaneous and thus that his right to counsel was not thereby
violated, we note that “the violation of the right to counsel may be
raised for the first time on appeal” (People v Whetstone, 281 AD2d
904, lv denied 96 NY2d 909; see People v Sierra, 85 AD3d 1659, 1660).
Nevertheless, “we conclude that the statements were spontaneous
inasmuch as ‘they were in no way the product of an interrogation
environment [or] the result of express questioning or its functional
equivalent’ ” (Sierra, 85 AD3d at 1660, quoting People v Harris, 57
NY2d 335, 342, cert denied 460 US 1047 [internal quotation marks
omitted]; see People v Rivers, 56 NY2d 476, 479-480, rearg denied 57
NY2d 775). Thus, the court properly refused to suppress defendant’s
statements based on the alleged violation of his right to counsel (see
People v Cascio, 79 AD3d 1809, 1811, lv denied 16 NY3d 893).

     Defendant further contends that his consent to the search that
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                                                         KA 09-00863

yielded the gun and ammunition was invalid because it was provided in
the absence of counsel, and thus that the search was unlawful. Even
assuming, arguendo, that we agree with defendant, we nevertheless
conclude that the error is harmless. Indeed, there is no reasonable
possibility that the constitutional error in failing to suppress the
gun and the ammunition might have contributed to the conviction, and
thus the error is harmless beyond a reasonable doubt (see People v
Crimmins, 36 NY2d 230, 237). In view of our determination, we do not
reach defendant’s further related contention that the doctrine of
inevitable discovery is inapplicable.

     Defendant failed to preserve for our review his contentions that
the police lacked probable cause to arrest him and that his
statements, the gun, and the ammunition should have been suppressed as
the product of an unlawful arrest (see People v Johnson, 60 AD3d 695,
lv denied 12 NY3d 916; People v Johnson, 52 AD3d 1286, 1287, lv denied
11 NY3d 738; People v Hyla, 291 AD2d 928, lv denied 98 NY2d 652).
Defendant also failed to preserve for our review his contention that
the suppression hearing testimony of the police officers was patently
tailored to nullify constitutional objections and was incredible as a
matter of law (see CPL 470.05 [2]). We decline to exercise our power
to review those contentions as a matter of discretion in the interest
of justice (see CPL 470.15 [6] [a]).

     To the extent that defendant contends that defense counsel was
ineffective for failing to raise the issues of probable cause for his
arrest and the credibility of the police officers’ testimony at the
suppression hearing, we reject that contention because “[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,
quoting People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702; see
People v McGee, 87 AD3d 1400, 1403; People v Biro, 85 AD3d 1570,
1572).

      Contrary to defendant’s contention, his sentence of a determinate
term of imprisonment of six years with five years of postrelease
supervision for his conviction of criminal possession of a weapon in
the second degree is not unduly harsh or severe. Finally, we reject
defendant’s contention that the imposition of a $5,000 fine was unduly
harsh and severe or an abuse of discretion. “Supreme Court did not
abuse its discretion in imposing a fine to impress upon defendant the
severity of his conduct” (People v McKenzie, 28 AD3d 942, 943, lv
denied 7 NY3d 759). Further, it appears from the record before us
that defendant has the resources to pay a substantial portion of the
fine, despite the appointment of assigned counsel to represent him
(cf. People v Gemboys, 270 AD2d 847, 848; People v Helm, 260 AD2d
803).



Entered:   December 30, 2011                    Frances E. Cafarell
                                                Clerk of the Court
