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

1016
KA 10-01037
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARLO J. BLOCKER, ALSO KNOWN AS MARLOW,
DEFENDANT-APPELLANT.


SHIRLEY A. GORMAN, BROCKPORT, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered January 13, 2010. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree (four counts), criminal possession of a weapon in
the third degree (two counts) and a traffic infraction.

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

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of four counts of criminal possession of a weapon
in the second degree (Penal Law § 265.03 [1] [b]; [3]), two counts of
criminal possession of a weapon in the third degree (§ 265.02 [1]),
and a traffic infraction. We reject defendant’s contention that he
was denied effective assistance of counsel. Defendant failed to
demonstrate that the alleged deficiencies in the pretrial suppression
motion compromised his defense or his right to a fair trial, inasmuch
as County Court addressed his challenge to the legality of the search
of his vehicle (see People v Hobot, 84 NY2d 1021, 1024; People v
Clark, 6 AD3d 1066, 1067, lv denied 3 NY3d 638). Defendant’s
contention that counsel was ineffective in failing to move to sever
his trial from that of his codefendant is based on matters outside the
record on appeal and therefore must be raised in a motion pursuant to
CPL 440.10 (see People v Fuentes, 52 AD3d 1297, 1300, lv denied 11
NY3d 736). Similarly, a motion pursuant to CPL 440.10 is the proper
procedural vehicle for defendant to raise his contention that counsel
failed to conduct an adequate investigation (see People v Conway, 118
AD3d 1290, 1291, lv denied 9 NY3d 990). Further, although counsel
failed to object to comments by the prosecutor that the People concede
supported an improper “safe streets” argument, “it cannot be said
that, viewing counsel’s representation in totality, such error
deprived defendant of meaningful representation” (People v Brown, 70
                                 -2-                          1016
                                                         KA 10-01037

AD3d 1302, 1304, affd 17 NY3d 742; see People v Baldi, 54 NY2d 137,
147).

     Defendant failed to preserve for our review his contention that
the warrantless search of his vehicle constituted an improper
inventory search (see CPL 470.05 [2]; People v Redden, 27 AD3d 1173,
1174, lv denied 7 NY3d 793), and 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]). We reject defendant’s further
contention that the court erred in charging the jury on accessorial
liability (see People v Rosario, 277 AD2d 943, 944, affd 96 NY2d 857).

     Finally, viewing the evidence in light of the elements of the
crimes of criminal possession of a weapon in the second and third
degrees 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). The
jury was entitled to reject the evidence that the weapons recovered
from the vehicle were possessed solely by one of the codefendants, and
to find, based upon the automobile presumption (see Penal Law § 220.25
[1]), that defendant knowingly possessed those weapons (see People v
Washington, 50 AD3d 1539, 1539, lv denied 11 NY3d 742). The jury was
also entitled to find, based upon the testimony of the firearms
examiner, that the sawed-off shotgun recovered from the vehicle
constituted a “firearm” under Penal Law § 265.00 (3) (d) (see People v
Tillery, 60 AD3d 1203, 1205-1206, lv denied 12 NY3d 860).




Entered:   October 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
