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

53
KA 13-01197
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAYMOND HARRIS, DEFENDANT-APPELLANT.


WILLIAM M. ROTH, 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 (Michael L.
Dwyer, J.), rendered March 20, 2013. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the fourth degree and criminal possession of a controlled
substance in the seventh degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing that part convicting
defendant of criminal possession of a controlled substance in the
seventh degree and dismissing count three of the indictment with
respect to defendant, and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal possession of a controlled substance
in the fourth degree (Penal Law § 220.09 [1]), and criminal possession
of a controlled substance in the seventh degree (§ 220.03). To the
extent that defendant may be deemed to challenge the legal sufficiency
of the evidence, we conclude that his challenge lacks merit (see
People v Torres, 68 NY2d 677, 678-679; see generally People v
Bleakley, 69 NY2d 490, 495). Additionally, contrary to defendant’s
contention, 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 conclude that the verdict is not against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495).

     Defendant did not object to the introduction of evidence that he
was on parole at the time of the incident and thus failed to preserve
for our review his contention that County Court erred in permitting
the prosecutor to present that evidence (see People v Johnson, 45 AD3d
606, 606, lv denied 9 NY3d 1035; see also People v Ricks, 49 AD3d
1265, 1266, lv denied 10 NY3d 869, reconsideration denied 11 NY3d
740). In any event, we reject defendant’s contention. Defendant’s
parole officer testified that defendant resided at the residence in
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                                                         KA 13-01197

which the cocaine was found, and that he had previously observed
defendant sleeping in the bedroom in which the drugs were discovered
by the police. That evidence was highly relevant to the issues at
trial, including, in this constructive possession case, whether
defendant exercised dominion and control over the bedroom in which the
drugs were found. Evidence that a defendant is on parole is
admissible where, as here, it is relevant to the issues at trial and
its probative value exceeds its prejudicial effect (see generally
People v Scarver, 121 AD3d 1539, 1540, lv denied 24 NY3d 1123; People
v Johnson, 94 AD3d 1144, 1145, lv denied 19 NY3d 997; People v Pryor,
48 AD3d 1217, 1217-1218, lv denied 10 NY3d 868). In addition, the
court minimized any prejudice to defendant by refusing to admit any
evidence detailing the specific crime of which defendant was convicted
(cf. People v Dowdell, 133 AD3d 1345, 1345-1346), and by giving prompt
cautionary instructions to the jury (see Johnson, 45 AD3d at 606;
People v Jones, 276 AD2d 292, 292, lv denied 95 NY2d 965; see
generally People v Kims, 24 NY3d 422, 439).

     Defendant further contends that he was denied effective
assistance of counsel by a series of purported errors by his trial
attorney. We reject that contention. With respect to defendant’s
contention that trial counsel was ineffective in failing to object to
the testimony of defendant’s parole officer, it is well settled that
“[a] defendant is not denied effective assistance of trial counsel
merely because counsel does not make a motion or argument that has
little or no chance of success” (People v Stultz, 2 NY3d 277, 287,
rearg denied 3 NY3d 702; see People v Gray, 27 NY3d 78, 88; People v
Caban, 5 NY3d 143, 152). For the reasons discussed above, the court
properly admitted the parole officer’s testimony, and defense counsel
therefore was not ineffective in failing to object to its
introduction. Similarly without merit is defendant’s contention that
counsel was ineffective in failing to request a circumstantial
evidence charge. “Defendant’s proximity to the cocaine, which was in
plain view, constitutes direct evidence of defendant’s possession of
the cocaine found in the apartment” (People v Wilson, 284 AD2d 958,
958, lv denied 96 NY2d 943; see People v Goodrum, 72 AD3d 1639, 1639,
lv denied 15 NY3d 773). Because this case involved both direct and
circumstantial evidence of guilt, a circumstantial evidence charge was
not warranted, and the failure to request such a charge “cannot be
said to have constituted ineffective assistance of counsel” (People v
Jones, 138 AD3d 1144, 1145, lv denied 28 NY3d 932; see People v Way,
115 AD3d 558, 558-559, lv denied 24 NY3d 1048; see also People v
Johnson, 303 AD2d 830, 836-837, lv denied 99 NY2d 655, reconsideration
denied 100 NY2d 583).

     Furthermore, “ ‘it is incumbent on defendant to demonstrate the
absence of strategic or other legitimate explanations’ for defense
counsel’s allegedly deficient conduct” (People v Atkins, 107 AD3d
1465, 1465, lv denied 21 NY3d 1040, quoting People v Rivera, 71 NY2d
705, 709; see People v Benevento, 91 NY2d 708, 712; People v
Hutchings, 142 AD3d 1292, 1295), and defendant failed to meet that
burden with respect to the remainder of the purported failures of
counsel raised on appeal. Viewing the evidence, the law and the
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                                                         KA 13-01197

circumstances of this case, in totality and as of the time of the
representation, and noting in particular that defendant was acquitted
of the most serious charge in the indictment (see People v Adsit, 125
AD3d 1430, 1431-1432, lv denied 25 NY3d 1068), we conclude that
defendant received meaningful representation (see generally People v
Baldi, 54 NY2d 137, 147).

     Finally, we agree with defendant that the third count of the
indictment, charging him with criminal possession of a controlled
substance in the seventh degree, must be dismissed as an inclusory
concurrent count of the remaining charge of which defendant was
convicted (see CPL 300.30 [4]; 300.40 [3] [b]; People v Lee, 39 NY2d
388, 390; People v Smith, 134 AD3d 1568, 1569). We therefore modify
the judgment accordingly.




Entered:   February 3, 2017                    Frances E. Cafarell
                                               Clerk of the Court
