SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1248
KA 13-00656
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ANTHONY PARSON, JR., DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DIANE S. MELDRIM OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered August 28, 2012. 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
affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his guilty plea of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]). We reject defendant’s contention
that County Court erred in refusing to suppress his statements and
evidence seized by the police from his vehicle. The court credited
the police officer’s testimony that, as he approached defendant’s
vehicle from the opposite direction in the late evening, he observed
that the vehicle had a cracked windshield and an object hanging from
the rearview mirror. The officer made a U-turn and stopped
defendant’s vehicle. When defendant rolled down the window, the
officer smelled burnt marihuana and asked defendant if he had been
using marihuana. Defendant responded yes, and the officer then asked
defendant to exit the vehicle. The officer searched both defendant
and the vehicle and found marihuana on defendant’s person and in the
vehicle, and also found a weapon inside the vehicle. Contrary to
defendant’s contention, the officer properly stopped defendant’s
vehicle upon observing violations of Vehicle and Traffic Law § 375
(22) and (30) (see People v Robinson, 97 NY2d 341, 349; People v
Dempsey, 79 AD3d 1776, 1777, lv denied 16 NY3d 830). We accord great
weight to the court’s determination “ ‘because of its ability to
observe and assess the credibility of the witnesses,’ ” and conclude
that its findings should not be disturbed (People v Mejia, 64 AD3d
1144, 1145, lv denied 13 NY3d 861; see People v Daniels, 117 AD3d
1573, 1575; see generally People v Prochilo, 41 NY2d 759, 761).
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Defendant’s contentions concerning the propriety of the search of his
person and his vehicle are not preserved for our review (see CPL
470.05 [2]; People v Adger, 83 AD3d 1590, 1591, lv denied 17 NY3d
857), and we decline to exercise our power to review them as a matter
of discretion in the interest of justice (see CPL 470.15 [3] [c]).
Defendant next contends that he was denied effective assistance
of counsel because defense counsel failed to cross-examine the police
witness at the suppression hearing with a vehicle inventory form that
purportedly showed that there was no damage to the vehicle. Defendant
contends that such evidence supported his assertion that, contrary to
the officer’s testimony, the windshield was not cracked. The vehicle
inventory form is not a part of the record on appeal, and therefore
defendant’s contention must be raised in a motion pursuant to CPL
article 440 (see People v Dizak, 93 AD3d 1182, 1185, lv denied 19 NY3d
972, reconsideration denied 20 NY3d 932).
We disagree with our dissenting colleague that defendant was
denied effective assistance of counsel based on defense counsel’s
failure to advance a more vigorous challenge to the officer’s
testimony regarding his reasons for stopping defendant’s vehicle.
Although defendant’s contention survives his guilty plea to the extent
that he contends that his plea was infected by the allegedly
ineffective assistance (see People v Neil, 112 AD3d 1335, 1336, lv
denied 23 NY3d 1040; People v Brown, 63 AD3d 1650, 1651), we conclude
that it lacks merit. “In the context of a guilty plea, a defendant
has been afforded meaningful representation when he or she receives an
advantageous plea and nothing in the record casts doubt on the
apparent effectiveness of counsel” (People v Ford, 86 NY2d 397, 404).
Here, defendant received an advantageous plea inasmuch as he received
the minimum sentence for his conviction. Defense counsel cross-
examined the officer about the object that was hanging from the
vehicle’s mirror, and asked the officer if the lighting conditions
were “enough” to “be able to see the cracked windshield.” In
addition, defense counsel made a persuasive argument at the conclusion
of the suppression hearing that the officer’s testimony regarding the
cracked windshield was not credible and that there “was really no
probable cause for the stop of that vehicle.” The fact that the court
did not agree with defense counsel’s assessment of the credibility of
the officer does not amount to ineffective assistance of counsel.
Indeed, “ ‘[s]peculation that a more vigorous cross-examination might
have [undermined the credibility of a witness] does not establish
ineffectiveness of counsel’ ” (People v Williams, 110 AD3d 1458, 1459-
1460, lv denied 22 NY3d 1160).
All concur except FAHEY, J., who dissents and votes to reverse in
accordance with the following Memorandum: I respectfully dissent
because in my view defendant was deprived of his right to effective
assistance of counsel. Initially, defendant contends that he was
denied effective assistance of counsel inasmuch as defense counsel did
not introduce in evidence a vehicle inventory form reflecting that the
windshield of the vehicle defendant was driving at the time he was
stopped by the police was undamaged. The vehicle inventory form
directly contradicts the testimony of the police officer who stopped
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that vehicle inasmuch as that officer testified at the suppression
hearing that he stopped the car because of a “pretty big” crack that
“covered most of the windshield.” Notably, the vehicle inventory form
is attached to defendant’s appellate brief and is signed by the
testifying police officer. It indicates that there was “no damage” to
the vehicle, contradicting the officer’s testimony. Inasmuch as the
vehicle inventory form is outside the record on appeal, however, I
agree with the majority that defendant’s contention concerning the
vehicle inventory form is properly the subject of a motion pursuant to
CPL article 440 (see People v Dizak, 93 AD3d 1182, 1185, lv denied 19
NY3d 972, reconsideration denied 20 NY3d 932).
I further conclude, however, that defendant was deprived of
meaningful representation by defense counsel’s deficient performance
at the suppression hearing. In my view, defense counsel did not
adequately explore the circumstances of the subject traffic stop. In
particular, I note that he did not inquire in detail concerning the
lighting conditions present at the time of the stop; the proximity of
the vehicle defendant was driving to a streetlight; the weather at the
time of the traffic stop; or the location of the vehicle defendant was
driving in relation to the officer’s location when he allegedly
observed the crack in the windshield. I thus conclude that defense
counsel’s deficient cross-examination was tantamount to a failure to
supply County Court with a rationale to grant suppression (see People
v Clermont, 22 NY3d 931, 933-934; cf. People v Mobley, 120 AD3d 916,
919), and that defendant was denied effective assistance of counsel
thereby (see generally People v Baldi, 54 NY2d 137, 147).
Consequently, I would reverse the judgment, vacate the plea and remit
the matter to County Court for further proceedings on the indictment.
Entered: November 21, 2014 Frances E. Cafarell
Clerk of the Court