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

585
KA 12-02148
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JORGE DEJESUS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered October 19, 2012. The judgment
convicted defendant, upon a nonjury verdict, of criminal possession of
a weapon in the second degree (two counts).

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of two counts of criminal possession of a
weapon in the second degree (Penal Law § 265.03 [3]). Supreme Court
properly refused to suppress defendant’s statements and the weapons
seized from the basement of his mother’s home. Contrary to
defendant’s contention, the People established that defendant’s mother
voluntarily consented to the search of her home (see People v May, 100
AD3d 1411, 1412, lv denied 20 NY3d 1063; People v McCray, 96 AD3d
1480, 1481, lv denied 19 NY3d 1104). Defendant’s remaining
contentions regarding the suppression hearing are not preserved for
our review (see CPL 470.05 [2]), and we decline to exercise our power
to review those contentions as a matter of discretion in the interest
of justice (see CPL 470.15 [6] [a]). “To the extent that defendant
contends that defense counsel was ineffective for failing to raise
[those issues] at the suppression hearing, we reject that contention
because [t]here can be no denial of effective assistance of . . .
counsel arising from [defense] counsel’s failure to make a motion or
argument that has little or no chance of success” (People v Watson, 90
AD3d 1666, 1667, lv denied 19 NY3d 868 [internal quotation marks
omitted]).

     Defendant next contends that the verdict is against the weight of
the evidence because he had only temporary innocent possession of the
weapons. We reject that contention (see People v Hicks, 110 AD3d
                                 -2-                          585
                                                        KA 12-02148

1488, 1488, lv denied 22 NY3d 1156). A person may be found to have
had temporary and lawful possession of a weapon if, for example, “he
found the weapon shortly before his possession of it was discovered
and he intended to turn it over to the authorities” (People v
Almodovar, 62 NY2d 126, 130). The court here rejected that defense
inasmuch as defendant did not turn over the weapons to the police
despite the opportunity to do so. Viewing the evidence in light of
the elements of the crime in this nonjury trial (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). Finally, the sentence is not unduly harsh or
severe.




Entered:   June 13, 2014                       Frances E. Cafarell
                                               Clerk of the Court
