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

747
KA 10-01486
PRESENT: SMITH, J.P., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LABRADFORD SMITH, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered October 14, 2009. 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 he received ineffective assistance of counsel. Defense counsel’s
failure to request a Wade hearing did not constitute ineffective
assistance inasmuch as “[t]here can be no denial of effective
assistance of trial counsel arising from counsel’s failure to ‘make a
motion or argument that has little or no chance of success’ ” (People
v Caban, 5 NY3d 143, 152; see People v Sebring, 111 AD3d 1346, 1346-
1347, lv denied 22 NY3d 1159; People v Hughes, 148 AD2d 1002, 1002, lv
denied 74 NY2d 741, reconsideration denied 74 NY2d 848). Defense
counsel’s failure to object to alleged Molineux evidence and to
request a limiting instruction “was a tactical decision” and did not
constitute ineffective assistance (People v Taylor, 2 AD3d 1306, 1308,
lv denied 2 NY3d 746). Inasmuch as one of the eyewitnesses knew
defendant, defense counsel was not ineffective in failing to call an
expert witness to testify about the reliability of eyewitness
identifications (see People v Faison, 113 AD3d 1135, 1136; see also
People v Stanley, 108 AD3d 1129, 1130-1131, lv denied 22 NY3d 959;
People v McDonald, 79 AD3d 771, 772, lv denied 16 NY3d 861). Defense
counsel’s failure to request a missing witness charge did not
constitute ineffective assistance of counsel. There was no indication
that the witness would have provided noncumulative testimony favorable
to the People (see People v Hicks, 110 AD3d 1488, 1489, lv denied 22
                                 -2-                           747
                                                         KA 10-01486

NY3d 1156; People v Myers, 87 AD3d 826, 828, lv denied 17 NY3d 954;
see generally People v Savinon, 100 NY2d 192, 197).

     Contrary to defendant’s contention, the verdict is not against
the weight of the evidence. Viewing the evidence in light of the
elements of the crime as charged to the jury (see People v Danielson,
9 NY3d 342, 349), we conclude that “the jury was justified in finding
the defendant guilty beyond a reasonable doubt” (id. at 348). We
further conclude that Supreme Court did not abuse its discretion in
determining that defendant was ineligible for youthful offender status
inasmuch as there were no “mitigating circumstances that bear directly
upon the manner in which the crime was committed” (CPL 720.10 [3] [i];
see People v Parker, 67 AD3d 1405, 1406, lv denied 15 NY3d 755; see
also People v Pulvino, 115 AD3d 1220, 1223). Finally, the sentence is
not unduly harsh or severe.




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