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

1390
KA 10-00799
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EARL FAISON, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered February 10, 2010. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree (two counts).

     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 two counts of criminal possession of a
weapon in the second degree (Penal Law § 265.03 [1] [b]; [3]).
Defendant made only a general motion for a trial order of dismissal
and thus failed to preserve for our review his contention that the
evidence is legally insufficient to support the conviction (see People
v Gray, 86 NY2d 10, 19). In any event, we conclude that defendant’s
contention lacks merit. According to the testimony of two
eyewitnesses, they were standing outside a house when a vehicle driven
by defendant slowed as it passed by them on the street. Defendant
rolled the window down, looked around, and then drove off. Moments
later, defendant made a U-turn and, as the vehicle passed by the
eyewitnesses a second time, his codefendant shot multiple rounds from
the passenger side of the vehicle. Thus, we conclude that there is a
valid line of reasoning and permissible inferences to enable the jury
to find that defendant shared his codefendant’s intent and jointly
possessed the weapon (see People v Velasquez, 44 AD3d 412, 412, lv
denied 9 NY3d 1040; see generally People v Bleakley, 69 NY2d 490,
495). Viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
further conclude that the verdict is not against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495).

     Defendant further contends that the in-court identification of
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                                                         KA 10-00799

him by a prosecution witness was tainted by unduly suggestive
circumstances, i.e., the fact that County Court asked him to stand
during the in-court identification. Even assuming, arguendo, that
defendant’s contention has merit, we conclude that any error is
harmless (see generally People v Aquino, 191 AD2d 574, 574, lv denied
81 NY2d 1069).

      We reject defendant’s contention that he was denied effective
assistance of counsel. “There can be no denial of effective
assistance of trial counsel arising from 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).
Contrary to defendant’s contention, testimony regarding the location
in which the police found the only projectile recovered from the scene
would have been admissible over defense counsel’s objection “as
background material that completed the narrative of the episode”
(People v Strong, 234 AD2d 990, 990, lv denied 89 NY2d 1016). Also
contrary to defendant’s contention, expert testimony concerning the
reliability of eyewitness identifications would have been
inappropriate in this case because defendant was a person known to one
of the eyewitnesses (see People v Abney, 13 NY3d 251, 268-269; see
also People v LeGrand, 8 NY3d 449, 459). We conclude that the record,
viewed as a whole, demonstrates that defense counsel provided
meaningful representation (see generally People v Baldi, 54 NY2d 137,
147).

     Defendant failed to preserve for our review his contention that
the court at sentencing erroneously considered crimes of which he was
not convicted, and we decline to exercise our power to review that
contention as a matter of discretion in the interest of justice (see
generally People v Hirsh, 106 AD3d 1546, 1548). Finally, we conclude
that the sentence is not unduly harsh or severe.




Entered:   January 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
