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

1063
KA 12-01261
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY J. DIXON, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM G. PIXLEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Thomas E. Moran, J.), rendered April 2, 2012. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree (two counts) and reckless endangerment 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
upon a jury verdict of two counts of criminal possession of a weapon
in the second degree (Penal Law § 265.03 [1] [b]; [3]), and one count
of reckless endangerment in the first degree (§ 120.25). Defendant
contends that the People failed to establish that the police had
reasonable suspicion to detain him for a showup identification because
they failed to establish the reliability of the dog tracking evidence
that the police used to assist them in locating him. Defendant’s
contention is not preserved for our review (see People v Lewis, 97
AD3d 1097, 1097-1098, lv denied 19 NY3d 1103; People v Cruz, 89 AD3d
1464, 1465-1466, lv denied 18 NY3d 993; People v Clark, 161 AD2d 1181,
1181, lv denied 76 NY2d 786). In any event, the evidence at the
suppression hearing, even without the dog tracking evidence, supports
Supreme Court’s determination that the police had the requisite
reasonable suspicion. A description of the suspect was broadcast over
the police radio, and officers arrived at the house where defendant
was found crouching on the front porch, which was in geographic and
temporal proximity to the scene of the crime, even before the dog
tracking team arrived at that same location (see People v Carr, 99
AD3d 1173, 1175, lv denied 20 NY3d 1010; People v Johnson, 174 AD2d
694, 694-695).

     We reject defendant’s further contention that he was denied
                                 -2-                          1063
                                                         KA 12-01261

effective assistance of counsel. The People established the relevance
of a gray hooded sweatshirt found at the house where defendant was
apprehended inasmuch as two witnesses observed the suspect wearing a
gray hooded sweatshirt at the time of the shooting (see People v
Schultz, 156 AD2d 944, 944, lv denied 82 NY2d 808). Therefore,
defense counsel’s failure to object to the admission of the sweatshirt
in evidence does not constitute ineffective assistance of counsel
inasmuch as such an objection would have had little to no chance of
success (see People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d
702). Although defense counsel failed to object to the lack of a
foundation for the dog tracking evidence (see People v Towsley, 85
AD3d 1549, 1551, lv denied 17 NY3d 905; People v Vandenbosch, 216 AD2d
884, 885, lv denied 86 NY2d 804; People v Abdullah, 134 AD2d 503, 504,
lv denied 71 NY2d 965), and failed to request a limiting instruction
with respect to that evidence (see People v Gangler, 227 AD2d 946,
946, lv denied 88 NY2d 985, reconsideration denied 89 NY2d 922;
Abdullah, 134 AD2d at 504), we conclude that those errors were not so
egregious and prejudicial to defendant as to deny him a fair trial
(see People v Releford, 126 AD3d 1407, 1408, lv denied 25 NY3d 1170;
see generally People v Turner, 5 NY3d 476, 480). The dog tracking
evidence concerned only the issue of defendant’s identity as the
shooter, and the evidence established that the police located
defendant after the shooting even without the dog tracking evidence.
In addition, two witnesses identified defendant at trial as the
shooter. We therefore conclude that the evidence, the law, and the
circumstances of this case, viewed in totality and as of the time of
the representation, establish that defendant was afforded meaningful
representation (see People v Baldi, 54 NY2d 137, 147).




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