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

1140
KA 12-01613
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAVELL FOX, DEFENDANT-APPELLANT.


PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered May 21, 2012. The judgment convicted
defendant, after a nonjury trial, of criminal possession of a
controlled substance in the third degree, criminal possession of a
controlled substance in the fourth degree, resisting arrest and
harassment in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of, inter alia, criminal possession of a
controlled substance in the third degree (Penal Law § 220.16 [1]).
The charges arose from an incident involving the traffic stop by a
police officer of a vehicle in which defendant was a passenger.
During the stop, defendant was instructed to exit the vehicle and,
while being frisked by a police officer, defendant pushed him and
fled. The police officer who stopped the vehicle and an assisting
police officer captured defendant and arrested him. After the arrest,
the police officers found drugs on the ground where defendant had been
standing and under the backseat of the patrol car where defendant had
been sitting.

     Defendant contends that County Court erred in denying his motion
to suppress the above physical evidence inasmuch as the initial frisk
was unlawful, which renders the subsequent arrest unlawful and any
evidence discovered thereafter by the police inadmissible. We reject
that contention. Even assuming, arguendo, that the frisk was
unlawful, we conclude that defendant’s act of pushing the frisking
officer was not “spontaneous and precipitated by the illegality . . .
[but] was a calculated act not provoked by the unlawful police
activity and thus attenuated from it” (People v Wilkerson, 64 NY2d
749, 750; see People v Stone, 197 AD2d 356, 356, lv denied 82 NY2d
                                 -2-                          1140
                                                         KA 12-01613

904). We therefore conclude that there was probable cause for
defendant’s subsequent arrest for harassment of the frisking officer
(cf. People v Felton, 78 NY2d 1063, 1064-1065). Consequently, the
drugs seized from defendant’s person and the backseat of the patrol
car were discovered incident to a lawful arrest (see People v Cooper,
85 AD3d 1594, 1595, affd 19 NY3d 501).

     We reject defendant’s further contention that the evidence is
legally insufficient to support the conviction for harassment and
resisting arrest. Viewing the evidence in the light most favorable to
the People (see generally People v Khan, 18 NY3d 535, 541), we
conclude that there is a “valid line of reasoning and permissible
inferences” that could rationally lead the court to determine that
defendant harassed the arresting officer and resisted arrest (People v
Bleakley, 69 NY2d 490, 495).

     We reject defendant’s contention that he was denied effective
assistance of counsel. Initially, we conclude that defendant is not
entitled to a reconstruction hearing to determine the contents of a
conversation between the court and defense counsel that allegedly
concerned privileged attorney-client matters. The court placed a
summary of the conversation on the record, and defense counsel agreed
to that summary. We conclude that defense counsel was not ineffective
for having such a conversation with the court inasmuch as the purpose
of the conversation was to ensure that defense counsel did not “breach
. . . any recognized professional duty” to either defendant or the
court (People v Andrades, 4 NY3d 355, 362). With respect to the
remaining grounds that defendant raises in support of his contention
of ineffective assistance of counsel, we conclude that “the evidence,
the law, and the circumstances of [this] particular case, viewed in
totality and as of the time of the representation, reveal that the
attorney provided meaningful representation” (People v Baldi, 54 NY2d
137, 147; see People v Hall, 106 AD3d 1513, 1514, lv denied 22 NY3d
956). To the extent that defendant’s claims of ineffective assistance
of counsel “involve matters outside the record on appeal . . . [they]
must be raised by way of a motion pursuant to CPL 440.10” (People v
Brown, 120 AD3d 1545, 1546; see People v Reed, 115 AD3d 1334, 1337, lv
denied 23 NY3d 1024).

     Finally, defendant’s sentence is not unduly harsh or severe.




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
