         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
618
KA 07-01482
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LUTHER ADAIR, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT 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 (Joseph E.
Fahey, J.), rendered June 6, 2006. The judgment convicted defendant,
upon a jury verdict, of attempted criminal possession of a weapon in
the second degree, criminal contempt in the first degree, harassment
in the second degree (two counts) and resisting arrest.

     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, inter alia, attempted criminal possession of a weapon in
the second degree (Penal Law §§ 110.00, 265.03 [former (2)]) and
criminal contempt in the first degree (§ 215.51 [b] [v]), defendant
contends that the evidence is legally insufficient to support the
conviction of attempted criminal possession of a weapon because the
People failed to establish that he attempted to possess the weapon in
question or that he intended to use it unlawfully against another
person. As defendant correctly concedes, that contention is
unpreserved for our review inasmuch as his motion for a trial order of
dismissal at the close of the People’s proof was not specifically
directed at the grounds raised on appeal (see People v Gray, 86 NY2d
10, 19).

     In any event, defendant’s contention is without merit. Defendant
was involved in an altercation with several uniformed police officers
who responded to a 911 call regarding a domestic dispute between
defendant and his girlfriend, on whose behalf an order of protection
had been issued against defendant. One of the officers testified at
trial that, during the altercation, he felt defendant tugging on the
holster for his service revolver and that, when the officer reached
down, he felt defendant’s hand on the top of the holster. The officer
yelled out to the other officers that defendant was trying to grab his
                                 -2-                           618
                                                         KA 07-01482

gun. After defendant was subdued and handcuffed, the officer observed
that one of the snaps on his holster had been opened. Another officer
testified at trial that he heard the snap on the holster open during
the altercation. Although defendant contends that his hand
inadvertently came into contact with the holster during the
altercation, we conclude that there is legally sufficient evidence
that defendant attempted to gain possession of the officer’s firearm.
We further conclude that, considering the circumstances under which
defendant was grabbing for the officer’s firearm, there is a valid
line of reasoning and permissible inferences from which a rational
jury could have found that defendant’s intent in attempting to possess
the weapon was to use it unlawfully against the police officers (see
generally People v Bleakley, 69 NY2d 490, 495). In addition, viewing
the evidence in light of the elements of the crime of attempted
criminal possession of a weapon in the second degree as charged to the
jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict with respect to that count is not against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495).

     We reject the further contention of defendant that County Court’s
denial of his two requests for an adjournment deprived him of a fair
trial. The decision whether to grant an adjournment lies in the sound
discretion of the trial court (see People v Spears, 64 NY2d 698,
699-700; People v McNear, 265 AD2d 810, 810-811, lv denied 94 NY2d
864), and the court’s exercise of that discretion “in denying a
request for an adjournment will not be overturned absent a showing of
prejudice” (People v Arroyo, 161 AD2d 1127, 1127, lv denied 76 NY2d
852; see People v Bones, 50 AD3d 1527, lv denied 10 NY3d 956). Here,
defendant failed to make the requisite showing of prejudice to warrant
reversal. We note that defense counsel offered no reason for his
first request for an adjournment, which was made on the first day of
trial. Defense counsel’s second request for an adjournment, made
after the People had rested, was based on the unavailability of the
officer who arrived at the scene during the altercation. That officer
was on the People’s witness list but did not testify because she was
out of town on vacation. In requesting the adjournment, defense
counsel stated that he anticipated that the officer’s testimony would
be “very favorable” to defendant. The record demonstrates, however,
that the officer in question was not present at the scene when
defendant attempted to gain possession of the other officer’s weapon,
and her police report did not indicate in any way that her testimony
would have been favorable to defendant. Under those circumstances, it
cannot be said that the court abused its discretion in denying defense
counsel’s requests for an adjournment (see People v Comfort, 60 AD3d
1298, 1299, lv denied 12 NY3d 924; People v Povio, 284 AD2d 1011, lv
denied 96 NY2d 923).

     Defendant contends that he was denied effective assistance of
counsel because defense counsel did not have sufficient time to
prepare for trial. Although defense counsel was assigned to represent
defendant 17 days prior to trial, it is apparent from his thorough
cross-examination of prosecution witnesses and his overall performance
that defense counsel had adequately prepared for trial. We conclude
that defense counsel was not ineffective based on his failure to
                                 -3-                           618
                                                         KA 07-01482

subpoena the officer who was on vacation at the time of the trial for
the reasons stated above. In addition, defense counsel cannot be
deemed ineffective for failing to move for a trial order of dismissal
with respect to the count charging defendant with attempted criminal
possession of a weapon on the grounds raised on appeal, inasmuch as
such a motion would have had “little or no chance of success” (People
v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702; see generally
People v Caban, 5 NY3d 143, 152). Viewing the evidence, the law and
the circumstances of this case, in totality and as of the time of the
representation, we conclude that defense counsel provided meaningful
representation (see generally People v Baldi, 54 NY2d 137, 147).




Entered:   May 6, 2011                         Patricia L. Morgan
                                               Clerk of the Court
