People v. FuquaPeople v. Fuqua
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of criminal possession of a controlled substance in the third degree (
We conclude that defendant‘s claim of actual innocence in his pro se supplemental brief is not properly before us on defendant‘s direct appeal. “A claim of actual innocence must be based upon reliable evidence which was not presented at the [time of trial] . . . , and thus must be raised by a motion pursuant to CPL article 440” (People v Alsaifullah, 162 AD3d 1483, 1486 (4th Dept 2018), lv denied 32 NY3d 1062 [2018] [internal quotation marks omitted]; see People v Hamilton, 115 AD3d 12, 23 (2d Dept 2014)).
Defendant also contends in his pro se supplemental brief that his arrest was not supported by probable cause and that County Court therefore erred in refusing to suppress the physical evidence seized incident to his arrest. We reject that contention. ” ‘Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief tha[t] an offense has been committed by the person arrested’ ” (People v Scott, 174 AD3d 1049, 1050 (3d Dept 2019)). Here, we conclude that probable cause was established by the independent observations of the police officer working with the confidential informant, which that officer relayed to the arresting officers (see
We reject defendant‘s further contention in his pro se supplemental brief that his conviction is not supported by legally sufficient evidence. Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 (1983)), we conclude that the evidence is legally sufficient to support the conviction with respect to each count (see People v Bleakley, 69 NY2d 490, 495 (1987)). Defendant also challenges the weight of the evidence in his pro se supplemental brief. Viewing the evidence in light of the elements of the crimes as charged to the jury (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).
Defendant further contends in his pro se supplemental brief that he was denied effective assistance of counsel based upon several acts or omissions on the part of defense counsel. Defendant‘s allegation that defense counsel failed to object to prosecutorial misconduct is without merit, inasmuch as the prosecutor did not engage in prosecutorial misconduct (see People v Graham, 174 AD3d 1486, 1489 (4th Dept 2019), lv denied 34 NY3d 1016 [2019]). To the extent that we are able to review defendant‘s remaining allegations of ineffective assistance on the record before us, we conclude that defendant received meaningful representation (see generally People v Baldi, 54 NY2d 137, 147 (1981)). To the extent that defendant‘s contention is based upon matters outside the record on appeal, his contention must be raised by way of a motion pursuant to
We have reviewed the remaining contentions raised in defendant‘s pro se supplemental brief and conclude that none warrants reversal or modification of the judgment.
Entered: June 12, 2020
Mark W. Bennett
Clerk of the Court