People v. Johnson

Jun 8, 2007
Versions:41 A.D.3d 1298
836 N.Y.S.2d 471

Appeal [836 NYS2d 471] from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered November 16, 2005. The judgment convicted defendant, after a nonjury trial, of criminal possession of a weapon in the third degree.

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

Memorandum: Defendant appeals from a judgment convicting him, following a bench trial, of criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]). As defendant concedes, he failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, we conclude that the contention has no merit (see People v Turner, 212 AD2d 1000 [1995]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Contrary to defendant’s further contention, defense counsel’s failure to seek suppression of defendant’s statement on Payton grounds was reasonable based on the facts of this case, and defendant thus was not thereby deprived of effective assistance of counsel (see People v Howard, 37 AD3d 494 [2007]; see also People v Garcia, 149 AD2d 241, 249-250 [1989], affd 75 NY2d 973 [1990]). “[T]he evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that [defense counsel] provided meaningful representation” (People v Baldi, 54 NY2d 137, 147 [1981]; see generally People v Henry, 95 NY2d 563, 565 [2000]). Present—Hurlbutt, J.P., Martoche, Smith, Fahey and Green, JJ.