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

120
KA 15-00322
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIMOTHY HARRIS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (NICHOLAS
T. TEXIDO OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered January 8, 2015. The judgment
convicted defendant, upon his plea of guilty, 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 his plea of guilty of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]). Contrary to defendant’s
contention, Supreme Court properly refused to suppress the weapon
based on defendant’s contention that the testimony of the police
witness was not credible. “It is well settled that the suppression
court’s credibility determinations . . . are granted deference and
will not be disturbed unless unsupported by the record” (People v
Esquerdo, 71 AD3d 1424, 1424, lv denied 14 NY3d 887 [internal
quotation marks omitted]). Here, the police witness testified that he
observed a group of men standing outside a gas station holding red
plastic cups and long clear bottles, which he believed were liquor
bottles. When he asked the group what they were doing, defendant
replied that they were having a few drinks to celebrate his birthday.
The police witness testified that he intended to issue citations to
the men for violating the city ordinance prohibiting the possession of
open containers of alcohol in public, and he directed the men to stand
by the police car, at which point defendant ran and the police witness
chased him in order to issue a citation for the violation of the
ordinance (see People v Basono, 122 AD3d 553, 553, lv denied 25 NY3d
1069). He testified that, while he was chasing defendant, he observed
defendant reach into his pocket and throw an object into a yard. The
gun was recovered from that area shortly thereafter. Although a
defense witness refuted the police witness’s testimony that the men
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                                                         KA 15-00322

were drinking liquor, the prosecution presented rebuttal evidence,
i.e., a recorded telephone call from the jail wherein defendant stated
that he was holding a bottle of liquor when the police approached him.
We therefore will not disturb the court’s credibility determination,
and we conclude that the court properly refused to suppress the gun,
which defendant had abandoned (see People v Martinez, 80 NY2d 444,
448-449).

     Contrary to defendant’s further contention, he was not denied his
constitutional right to participate in the suppression hearing.
Although he remained at the counsel table while the court, the police
witness and counsel listened to a dispatch recording during cross-
examination of the police witness, the record establishes that defense
counsel explicitly waived defendant’s presence “in open court while
defendant was present,” after the court had stated on the record that
the only means by which to hear the recording was on the court clerk’s
computer (People v Taylor, 136 AD3d 1331, 1332, lv denied 27 NY3d
1075). We further conclude that defendant was not denied his right to
be present at a material stage of the proceedings when the court
reviewed the recorded telephone call from the jail that was admitted
in evidence over defense counsel’s objection. Defendant was present
when the evidence was admitted in evidence, which is a material stage
of the hearing (see People v Monroe, 90 NY2d 982, 984). Inasmuch as
the exhibit had been received in evidence, the court’s review of that
evidence was “at best an ancillary proceeding,” at which he had the
right to be present if he had “ ‘something of value to contribute,’ ”
or if his “exclusion could ‘substantially affect the ability to defend
against the charge’ ” (id.). We conclude that “on this record
defendant’s absence did not compromise his ability to advance his
position or counter the People’s theory, [and thus] defendant’s
presence was not required” (id.).

     We further conclude that defendant was not denied effective
assistance of counsel based upon defense counsel’s waiver of his
presence at the court clerk’s desk while the dispatch recording was
played during the hearing or upon her consent to the court’s request
that it review the exhibit of the recorded jail call in chambers,
rather than in the full courtroom, after it had been received in
evidence (see generally People v Caban, 5 NY3d 143, 152). We likewise
reject defendant’s contention that defense counsel’s failure to review
the recorded telephone call constitutes ineffective assistance of
counsel. The record establishes that defense counsel had been
apprised by the prosecutor that the exhibit contained a recorded call
wherein defendant stated that he was holding a bottle of liquor when
the police arrived, and we conclude that her reliance on the
prosecutor’s statement does not constitute ineffective assistance of
counsel (see generally id.). Finally, we reject defendant’s
contention that the failure of defense counsel to submit a post-
hearing argument on the suppression issue constitutes ineffective
assistance of counsel. The omnibus motion set forth a cogent theory
for suppression of the evidence, and defense counsel vigorously
pursued that theory through cross-examination of the police witness
and by presenting a defense witness (cf. People v Clermont, 22 NY3d
931, 933-934; People v Layou, 114 AD3d 1195, 1198). We therefore
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                                                         KA 15-00322

conclude that defendant received meaningful representation (see
generally People v Baldi, 54 NY2d 137, 147).




Entered:   February 3, 2017                    Frances E. Cafarell
                                               Clerk of the Court
