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

640
KA 13-01924
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOVAN BARKSDALE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JOVAN BARKSDALE, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Kenneth F. Case,
J.), rendered August 29, 2013. The judgment convicted defendant, upon
a jury verdict, of criminal possession of a weapon in the second
degree.

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

     Memorandum: On appeal from a judgment convicting him following a
jury trial of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), defendant contends in his main and pro se
supplemental briefs that County Court erred in determining that he
lacked standing to seek suppression of the weapon seized by the police
without conducting a hearing on the issue of standing. We reject that
contention. It is undisputed that the weapon was not found on
defendant’s person or on property in which defendant had a legitimate
expectation of privacy (see People v Wesley, 73 NY2d 351, 357-358),
nor did defendant allege that police conduct caused him to relinquish
control of the weapon (see People v Mendoza, 82 NY2d 415, 432).

     Contrary to defendant’s further contention, the court properly
denied his Batson challenge based on its determination that the
prosecutor’s explanation for the peremptory challenge at issue was not
pretextual (see People v Ramos, 124 AD3d 1286, 1287).

     Defendant failed to preserve for our review his contention
regarding the alleged legal insufficiency of the evidence inasmuch as
he made only a general motion for a trial order of dismissal (see
People v Gray, 86 NY2d 10, 19; People v Arroyo, 111 AD3d 1299, 1299,
lv denied 23 NY3d 960). Viewing the evidence in light of the elements
                                 -2-                           640
                                                         KA 13-01924

of the crime 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 People v Bleakley, 69 NY2d 490, 495).

     We further reject defendant’s contention that the court erred in
admitting the testimony of a police officer regarding the meaning
and/or interpretation of certain “street slang” used in a recorded
telephone call made by defendant while he was incarcerated. “[E]xpert
testimony interpreting the meaning of words is not restricted to
narcotics cases . . . , and the record establishes that the police
officer was qualified to interpret the language based on his
experience” (People v Browning, 117 AD3d 1471, 1471, lv denied 23 NY3d
1060). Although in one instance the officer may have gone beyond
merely interpreting certain words or phrases from the recorded
telephone call, we note that the court issued an agreed upon
cautionary instruction to the jury, which effectively “eliminated any
potential prejudice to defendant” (People v Green, 170 AD2d 1024,
1025, lv denied 78 NY2d 966).

     We likewise reject defendant’s contention that he was denied
effective assistance of counsel based on defense counsel’s failure to
file a CPL 30.30 motion and defense counsel’s failure to make a
specific motion for a trial order of dismissal based on legal
insufficiency. With respect to the CPL 30.30 motion, we conclude that
such a motion would have been unsuccessful, and defense counsel is not
ineffective for failing to make a motion that has little or no chance
of success (see People v Harris, 97 AD3d 1111, 1111-1112, lv denied 19
NY3d 1026). We reach the same conclusion with respect to defense
counsel’s failure to make a specific motion for a trial order of
dismissal (see id.).

     Finally, we reject defendant’s challenge to the severity of the
sentence.




Entered:   June 12, 2015                        Frances E. Cafarell
                                                Clerk of the Court
