People v. Bedell

Feb 7, 2014
Versions:114 A.D.3d 1153
979 N.Y.S.2d 892

Appeal from a judgment of the Monroe County Court (John Lewis DeMarco, J.), rendered February 9, 2011. The judgment convicted defendant, after a nonjury trial, of criminal possession of a controlled substance in the fifth degree.

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

Memorandum: Defendant appeals from a judgment convicting him, after a nonjury trial, of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [1]). Defendant contends that defense counsel was ineffective for failing to move to suppress the currency found on defendant during a search incident to his arrest, as well as a paper bag hidden near a guardrail at the end of a dead-end street that contained 13 “dime bags” of crack cocaine. Defendant failed to demonstrate “‘that the ‘motion, if made, would have been successful and that defense counsel‘s failure to make that motion deprived him’ “’ (People v Bassett, 55 AD3d 1434, 1437-1438 [2008], lv denied 11 NY3d 922 [2009]; see generally People v Rivera, 71 NY2d 705, 709 [1988]).

Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we reject defendant‘s contention that the evidence is legally insufficient to establish that he possessed the cocaine with intent to sell it (see People v Freeman, 28 AD3d 1161, 1162 [2006], lv denied 7 NY3d 788 [2006]; People v Smith, 217 AD2d 910, 911 [1995]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Contrary to defendant‘s further contention, viewing the evidence in light of the elements of the crime in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495). Present—Scudder, P.J., Fahey, Peradotto, Carni and Valentino, JJ.