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

180
KA 15-00159
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PERNELL PARKER, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DAVID A.
HERATY OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Kenneth F. Case,
J.), rendered January 20, 2015. The judgment convicted defendant,
upon a jury verdict, of criminal possession of a controlled substance
in the fifth degree and tampering with physical evidence.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reducing the conviction of
tampering with physical evidence to attempted tampering with physical
evidence and by vacating the sentence imposed on count two of the
indictment and as modified the judgment is affirmed, and the matter is
remitted to Erie County Court for sentencing on the conviction of
attempted tampering with physical evidence.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal possession of a controlled substance
in the fifth degree (Penal Law § 220.06 [5]) and tampering with
physical evidence (§ 215.40 [2]). Defendant contends that defense
counsel was ineffective for failing to move to suppress the physical
evidence on the ground that he was unlawfully seized when the police
officers pursued him into a store without reasonable suspicion of
criminal activity. We reject that contention. It is well settled
that “a showing that [defense] counsel failed to make a particular
pretrial motion generally does not, by itself, establish ineffective
assistance of counsel” (People v Rivera, 71 NY2d 705, 709; see People
v Biro, 85 AD3d 1570, 1571), and it is equally well settled that, in
order “[t]o prevail on a claim of ineffective assistance of counsel,
it is incumbent on defendant to demonstrate the absence of strategic
or other legitimate explanations for counsel’s failure to request a
particular hearing. Absent such a showing, it will be presumed that
counsel acted in a competent manner and exercised professional
judgment in not pursuing a hearing” (Rivera, 71 NY2d at 709).
Futhermore, “[t]here can be no denial of effective assistance of . . .
                                 -2-                           180
                                                         KA 15-00159

counsel arising from [defense] 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, rearg denied
3 NY3d 702). Here, defendant failed to demonstrate the absence of
legitimate explanations for defense counsel’s failure to make that
particular suppression motion, or that the “ ‘motion, if made, would
have been successful and that defense counsel’s failure to make that
motion deprived him of meaningful representation’ ” (People v Bassett,
55 AD3d 1434, 1437-1438, lv denied 11 NY3d 922).

     We reject defendant’s contention that the conviction of criminal
possession of a controlled substance in the fifth degree is based on
legally insufficient evidence (see generally People v Bleakley, 69
NY2d 490, 495). Viewing the evidence in light of the elements of that
crime as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we reject defendant’s further contention that the verdict with
respect to that count is against the weight of the evidence (see
generally Bleakley, 69 NY2d at 495).

     We agree with defendant, however, that the evidence is legally
insufficient to support the conviction of tampering with physical
evidence. Insofar as relevant here, a person is guilty of that crime
when, “[b]elieving that certain physical evidence is about to be
produced or used in an official proceeding or a prospective official
proceeding, and intending to prevent such production or use, he [or
she] suppresses it by any act of concealment” (Penal Law § 215.40
[2]). The People’s theory was that defendant tampered with physical
evidence by throwing bags of cocaine onto the floor of a store with
the intent of concealing the drugs from the pursuing police officers
and thereby preventing the use of the drugs in a prospective official
proceeding. The evidence at trial established that officers observed
defendant throw bags of suspected crack cocaine onto the floor when he
passed through the front entrance of the store. Although the offense
of tampering with physical evidence does not require the actual
suppression of physical evidence, there must be an act of concealment
while intending to suppress the evidence (see People v Eaglesgrave,
108 AD3d 434, 434, lv denied 21 NY3d 1073). We conclude that the
evidence is legally insufficient to establish that defendant
accomplished an act of concealment inasmuch as he dropped the items
onto the floor in plain sight of the officers (cf. People v Atkins, 95
AD3d 731, 731, lv denied 19 NY3d 994). We further conclude, however,
that there is legally sufficient evidence to sustain a conviction of
attempted tampering with physical evidence (§§ 110.00, 215.40 [2];
Eaglesgrave, 108 AD3d at 435). We therefore modify the judgment by
reducing defendant’s conviction of tampering with physical evidence to
attempted tampering with physical evidence and vacating the sentence
imposed on count two of the indictment (see CPL 470.15 [2] [a]), and
we remit the matter to County Court for sentencing on the conviction
of attempted tampering with physical evidence.


Entered:   March 24, 2017                      Frances E. Cafarell
                                               Clerk of the Court
