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

584
KA 13-01493
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTOINE HAILEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered June 4, 2013. The judgment
convicted defendant, upon a nonjury 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
nonjury trial of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), defendant contends that the minimal inquiry
of Supreme Court failed to establish that defendant understood the
critical right he was waiving when executing the waiver of the right
to a jury trial. Inasmuch as defendant did not challenge the adequacy
of the allocution related to that waiver, he failed to preserve for
our review his challenge to the sufficiency of the court’s inquiry
(see People v Lumpkins, 11 AD3d 563, 564, lv denied 4 NY3d 746; see
also People v White, 43 AD3d 1407, 1407, lv denied 9 NY3d 1010; see
generally People v Johnson, 51 NY2d 986, 987). In any event, that
challenge lacks merit. “Defendant waived his right to a jury trial in
open court and in writing in accordance with the requirements of NY
Constitution, art I, § 2 and CPL 320.10 (2) . . . , and the record
establishes that defendant’s waiver was knowing, voluntary and
intelligent” (People v Wegman, 2 AD3d 1333, 1334, lv denied 2 NY3d
747; see People v Dixon, 50 AD3d 1519, 1520, lv denied 10 NY3d 958;
cf. People v Davidson, 136 AD2d 66, 67-70; see generally People v
Smith, 6 NY3d 827, 828, cert denied 548 US 905).

     Defendant further contends that the conviction is not supported
by legally sufficient evidence and that the verdict is against the
weight of the evidence. With respect to the legal sufficiency of the
evidence, defendant failed to preserve for our review his contention
                                 -2-                           584
                                                         KA 13-01493

that the firearm was not operable because his motion for a trial order
of dismissal was not specifically directed at that alleged deficiency
in the People’s proof (see People v Gray, 86 NY2d 10, 19). In any
event, we conclude that the evidence is legally sufficient to
establish the operability of the firearm. Although the barrel of the
firearm was loose and the loading gate would not remain closed, the
People presented the testimony of the firearms examiner establishing
that neither fact affected the operability of the firearm itself (see
People v Cavines, 70 NY2d 882, 883; cf. People v Shaffer, 66 NY2d 663,
664). Indeed, the firearm was operational when the firearms examiner
test-fired the firearm with the ammunition that had been loaded in the
firearm at the time it was recovered (see Penal Law § 265.00 [15]).

      We further conclude that the conviction is supported by legally
sufficient evidence that defendant possessed the firearm (see
generally People v Bleakley, 69 NY2d 490, 495). The People presented
the testimony of an eyewitness who observed defendant in physical
possession of the gun, as well as the testimony of a forensic
biologist establishing that defendant “[was] the source of the major
portion of the [DNA]” found on the firearm. Indeed, according to the
testimony of the forensic biologist, the possibility of randomly
selecting an unrelated individual with a matching DNA profile to the
major DNA profile found on the firearm was “at least 1 in 13.43
quintillion.” Finally, the evidence presented at trial established
that the firearm was located in ceiling tiles directly above the area
of the residence where defendant had been seated when the police
entered the residence, and that no one else in the residence had been
seated near defendant.

     Contrary to defendant’s contention, the testimony of the
eyewitness was not incredible as a matter of law, i.e., “impossible of
belief because it [was] manifestly untrue, physically impossible,
contrary to experience, or self-contradictory” (People v Errington,
121 AD3d 1553, 1555 [internal quotation marks omitted]; see People v
Ponzo, 111 AD3d 1347, 1348; People v Myers, 87 AD3d 826, 827, lv
denied 17 NY3d 954). Moreover, any inconsistencies in the testimony
of the police officers did not concern material elements of the crime
charged and were “not so substantial as to render the verdict against
the weight of the evidence” (People v Bailey, 90 AD3d 1664, 1666, lv
denied 19 NY3d 861; see People v Hightower, 286 AD2d 913, 915, lv
denied 97 NY2d 656). We thus conclude that, upon viewing the evidence
in light of the elements of the crime in this nonjury trial (see
People v Danielson, 9 NY3d 342, 349), the verdict is not against the
weight of the evidence (see Bleakley, 69 NY2d at 495).

     We reject defendant’s further contention that he was denied
effective assistance of counsel based on defense counsel’s failure to
pursue a motion to suppress the firearm. 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 Caban, 5 NY3d 143, 152; People v
Rivera, 71 NY2d 705, 709). “Where, as here, a defendant challenges
                                 -3-                           584
                                                         KA 13-01493

the effectiveness of counsel based on counsel’s failure to make
certain motions, the defendant must establish that the motions, if
made, ‘would have been successful and that counsel otherwise failed to
provide meaningful representation’ ” (People v Clark, 6 AD3d 1066,
1067, lv denied 3 NY3d 638; see People v Patterson, 115 AD3d 1174,
1175-1176, lv denied 23 NY3d 1066). Here, defendant failed to meet
his burden. The record establishes that defendant “had no expectation
of privacy in the searched premises [because] he was only an
occasional visitor there,” and he thus lacked standing to object to
the search (People v Caprood, 176 AD2d 982, 982; see People v
Sommerville, 6 AD3d 1232, 1232, lv denied 3 NY3d 648; People v
Christian, 248 AD2d 960, 960, lv denied 91 NY2d 1006; cf. People v
Brown, 260 AD2d 390, 390, lv denied 93 NY2d 1001). Moreover, although
defendant raises conclusory challenges to the owner’s consent to the
search of her home, “defendant has not advanced any arguable basis for
suppression, which is fatal to his ineffective assistance of counsel
claim” (People v Clifford, 295 AD2d 697, 698, lv denied 98 NY2d 709).
We have reviewed defendant’s remaining challenge to the effectiveness
of counsel and conclude that it lacks merit. Viewing the evidence,
the law, and the circumstances of this case in totality and as of the
time of the representation, we conclude that defendant was afforded
meaningful representation (see generally People v Baldi, 54 NY2d 137,
147).

     Finally, we conclude that the sentence is not unduly harsh or
severe.




Entered:   May 1, 2015                          Frances E. Cafarell
                                                Clerk of the Court
