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

768
KA 11-01588
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHN G. JOHNSON, JR., DEFENDANT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Thomas R.
Morse, A.J.), rendered February 11, 2010. 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: Defendant appeals from a judgment convicting him,
upon a jury verdict, of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]). We reject defendant’s contention
that defense counsel was ineffective for failing to move to suppress
the handgun and cell phone that defendant dropped when he was fleeing
from the police and for failing to object to the police officers’
testimony at trial that they were assigned to a robbery detail on the
night in question. Defendant failed to demonstrate that the motion
and objection, “ ‘if made, would have been successful and that defense
counsel’s failure to make that motion [and objection] deprived him of
meaningful representation’ ” (People v Bassett, 55 AD3d 1434, 1437-
1438, lv denied 11 NY3d 922; see People v Bedell, 114 AD3d 1153,
1153). Viewing the evidence, the law and the circumstances of this
case in totality and as of the time of the representation, we conclude
that defense counsel provided meaningful representation (see generally
People v Baldi, 54 NY2d 137, 147).

     Contrary to defendant’s further contention, County Court did not
err in failing to provide a moral certainty charge, inasmuch as there
was both direct and circumstantial evidence of guilt (see People v
Allen, 1 AD3d 947, 948, lv denied 1 NY3d 594; People v Goncalves, 283
AD2d 1005, 1005-1006, lv denied 96 NY2d 918). We reject defendant’s
contention that the court abused its discretion in denying his motion
for a mistrial based on the hearsay testimony of a prosecution
                                 -2-                           768
                                                         KA 11-01588

witness. “[T]he decision to grant or deny a motion for a mistrial is
within the trial court’s discretion” (People v Ortiz, 54 NY2d 288,
292). Here, the court did not abuse its discretion in denying
defendant’s motion for a mistrial and instead providing the jury with
a strong curative instruction directing them to disregard the improper
testimony, which “the jury is presumed to have followed” (People v
DeJesus, 110 AD3d 1480, 1482, lv denied 22 NY3d 1155).

     Defendant failed to seek a ruling on that part of his omnibus
motion seeking to suppress identification testimony on the ground that
the police were required to obtain a warrant before searching the
content of his cell phone, which content was used to obtain a
photograph of defendant for inclusion in a photo array, and we further
note that he did not object to the admission of the identification
testimony at trial on that ground. Defendant therefore has abandoned
any contention that the identification testimony should have been
suppressed on that ground (see People v Adams, 90 AD3d 1508, 1509, lv
denied 18 NY3d 954). We reject defendant’s contention that his
Confrontation Clause rights were violated by an officer’s testimony
regarding the photographs contained in the cell phone, inasmuch as
those photographs were not “ ‘procured with a primary purpose of
creating an out-of-court substitute for trial testimony’ ” (People v
Pealer, 20 NY3d 447, 453, cert denied ___ US ___, 134 S Ct 105,
quoting Michigan v Bryant, 562 US ___, ___, 131 S Ct 1143, 1155).
Defendant failed to preserve for our review his further contentions
that the court erred in failing to issue a limiting instruction with
respect to the officers’ testimony that they were assigned to a
robbery detail on the night in question (see People v Williams, 107
AD3d 1516, 1516, lv denied 21 NY3d 1047), and that he was denied a
fair trial based on prosecutorial misconduct on summation (see People
v Irvin, 111 AD3d 1294, 1296). 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]). Finally, defendant’s contention
that the court misapprehended its sentencing discretion with respect
to the period of postrelease supervision is unsupported by the record,
and the sentence is not unduly harsh or severe.




Entered: June 20, 2014                          Frances E. Cafarell
                                                Clerk of the Court
