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

909
KA 10-00801
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROOSEVELT ROBERTS, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered December 8, 2009. The appeal was held by this
Court by order entered October 4, 2013, decision was reserved and the
matter was remitted to Onondaga County Court for further proceedings
(110 AD3d 1466). The proceedings were held and completed before
Supreme Court, Onondaga County (John J. Brunetti, A.J.).

     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 under count four of the indictment, vacating the
sentence imposed thereon, and dismissing that count of the indictment,
and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, criminal sale of a controlled
substance in the third degree (Penal Law § 220.39 [1]), criminal
possession of a controlled substance in the fifth degree (§ 220.06
[5]), and criminal possession of a controlled substance in the seventh
degree (§ 220.03). In a prior determination with respect to this
appeal, we concluded that defendant had been denied a full and fair
opportunity to litigate his motion to suppress certain statements that
he made to a Syracuse police detective who was transporting him to the
jail for booking purposes. Consequently, we held the case, reserved
decision, and remitted the matter to County Court for a hearing that
would give defendant the “opportunity to explore the issues of
spontaneity or the effect of the previously-given Miranda warnings, or
to raise any other issues regarding the admissibility of those
statements” (People v Roberts, 110 AD3d 1466, 1468). The matter is
now before us following remittal.

     Based on the evidence introduced at the original suppression
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                                                         KA 10-00801

hearing as well as at the additional hearing on remittal, we conclude
that the court properly found that those statements were not the
result of custodial interrogation. The evidence at the hearings
establishes that the statements were not caused by “words or actions
on the part of police officers that they should have known were
reasonably likely to elicit an incriminating response” (Rhode Island v
Innis, 446 US 291, 302; see People v Ferro, 63 NY2d 316, 322-323, cert
denied 472 US 1007). We thus agree with the court that “ ‘[n]o
response [from defendant] was called for [under] the circumstances’ ”
(People v Huffman, 61 NY2d 795, 797; see People v Allnutt, 148 AD2d
993, 993, lv denied 74 NY2d 736; cf. People v Paulman, 5 NY3d 122,
129; People v Brown, 52 AD3d 1175, 1176, lv denied 11 NY3d 923). We
reject defendant’s further contention that the court abused its
discretion in refusing to allow defense counsel to review a witness’
medical records after the court’s in camera review of them, in light
of the collateral nature of the information sought (see generally
People v Guagenti, 264 AD2d 427, 427, lv denied 94 NY2d 823).

     Defendant contends that the court’s error in handling a jury note
constitutes a mode of proceedings error and thus that reversal is
required pursuant to People v O’Rama (78 NY2d 270) despite his failure
to preserve the issue for our review. We reject that contention. No
mode of proceedings error occurred because, “[w]here, as here, defense
counsel had notice of a jury note and ‘failed to object . . . when the
error could have been cured,’ lack of preservation bars the claim”
(People v Williams, 21 NY3d 932, 935). We decline to exercise our
power to review defendant’s contention as a matter of discretion in
the interest of justice (see CPL 470.15 [6] [a]).

     Defendant also failed to preserve for our review his contention
that the court failed to follow the statutory procedure in sentencing
him as a persistent felony offender (see People v Proctor, 79 NY2d
992, 994; People v Korber, 89 AD3d 1543, 1544, lv denied 19 NY3d 864;
People v Daggett, 88 AD3d 1296, 1297, lv denied 18 NY3d 956). We
decline to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]). In
addition, defendant failed to preserve for our review his contention
that the persistent felony offender sentencing scheme is
unconstitutional. In any event, it is well settled that the
persistent felony offender statute is constitutional (see People v
Battles, 16 NY3d 54, 59, cert denied ___ US ___, 132 S Ct 123).
Furthermore, because a motion challenging the constitutionality of the
persistent felony offender statute had no chance of success, defense
counsel was not ineffective in failing to bring such a motion. “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). We have
reviewed defendant’s remaining alleged instances of ineffective
assistance and conclude that they are without merit.

     We agree with defendant, however, that his conviction under the
fourth count of the indictment cannot stand. As the People correctly
concede, that count, charging defendant with criminal possession of a
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                                                            KA 10-00801

controlled substance in the seventh degree, is a lesser inclusory
concurrent count of the third count, charging defendant with criminal
possession of a controlled substance in the fifth degree (see People v
Greer, 217 AD2d 1003, 1004). Although defendant failed to preserve
this contention for our review, the People also correctly concede that
“we may review the issue as a matter of law despite defendant’s
failure to raise it in the trial court” (People v Robertson, 217 AD2d
989, 990, lv denied 86 NY2d 846; see People v Moore, 41 AD3d 1149,
1152, lv denied 9 NY3d 879, reconsideration denied 9 NY3d 992). We
therefore modify the judgment accordingly.

     Finally, the sentence is not unduly harsh or severe.




                                                Frances E. Cafarell




Entered:   October 3, 2014
                                                Clerk of the Court
