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

1008
KA 11-01630
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT L. HICKS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered July 19, 2011. 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: On appeal from a judgment convicting him upon a jury
verdict of criminal possession of a weapon in the second degree (Penal
Law § 265.03 [3]), defendant contends that the verdict is against the
weight of the evidence because he had only temporary innocent
possession of the weapon. We reject that contention. Although a
person may be found to have had temporary and lawful possession of a
weapon if he or she took the weapon from an assailant in the course of
a fight (see People v Almodovar, 62 NY2d 126, 130), here the jury
reasonably could have found that defendant, after taking the gun at
issue from another person, retained possession of it despite the
opportunity to turn it over to lawful authorities (see People v
Snyder, 73 NY2d 900, 901-902; see also People v Gonzalez, 262 AD2d
1061, 1061-1062, lv denied 93 NY2d 1018). Specifically, the record
establishes that defendant fled from the police on a bicycle and
disposed of the gun in a garbage can. Defendant’s purposeful
avoidance of the police is “utterly at odds with [his] claim of
innocent possession . . . temporarily and incidentally [resulting]
from . . . disarming a wrongful possessor” (Snyder, 73 NY2d at 902
[internal quotation marks omitted]; see Gonzalez, 262 AD2d at 1062).
Thus, 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 verdict is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495).
                                 -2-                          1008
                                                         KA 11-01630

     Contrary to defendant’s contention, “defense counsel’s failure to
make a specific motion for a trial order of dismissal at the close of
the People’s case [does] not constitute ineffective assistance of
counsel, inasmuch as any such motion would have had no chance of
success” (People v Horton, 79 AD3d 1614, 1616, lv denied 16 NY3d 859;
see generally People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d
702). Indeed, we note that defendant does not contend on appeal that
the evidence at trial is legally insufficient to support the
conviction. Defendant also failed to demonstrate a lack of strategic
or other legitimate explanations for defense counsel’s alleged
ineffectiveness in failing to request a charge on the lesser included
offense of criminal possession of a weapon in the fourth degree (Penal
Law § 265.01 [1]), or in failing to request a missing witness charge
(see People v Benevento, 91 NY2d 708, 712-713). Further, “[a]bsent
proof that such witness would have provided noncumulative testimony
which was favorable to [the prosecution], there was no basis for such
a charge” (People v Myers [appeal No. 1], 87 AD3d 826, 828, lv denied
17 NY3d 954 [internal quotation marks omitted]). We have reviewed the
remaining alleged deficiencies in defense counsel’s performance and
conclude that defendant received meaningful representation (see
generally People v Baldi, 54 NY2d 137, 147).

     We reject defendant’s further contention that the photo array was
unduly suggestive (see generally People v Chipp, 75 NY2d 327, 335,
cert denied 498 US 833). The individuals depicted in the photo array
were “sufficiently similar in appearance so that the viewer’s
attention [was] not drawn to any one photograph in such a way as to
indicate that the police were urging a particular selection” (People v
Quinones, 5 AD3d 1093, 1093, lv denied 3 NY3d 646; see Chipp, 75 NY2d
at 336). Although we conclude upon our review of a copy of the photo
array that defendant appears to have a darker skin tone than the other
African-American males depicted therein, we note that the witnesses
were instructed that the photographs in the array “may not depict the
true complexion of a person.” Moreover, “differences in skin tone
alone will not render a lineup unduly suggestive” (People v Fewell, 43
AD3d 1293, 1294, lv denied 9 NY3d 1033, reconsideration denied 10 NY3d
862 [internal quotation marks omitted]; see Quinones, 5 AD3d at 1093).
Finally, the sentence is not unduly harsh or severe.




Entered:   October 4, 2013                      Frances E. Cafarell
                                                Clerk of the Court
