SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
5
KA 08-01362
PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
MAURICE JOHNSON, DEFENDANT-APPELLANT.
DAVISON LAW OFFICE, PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL),
FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered June 12, 2008. The judgment
convicted defendant, upon a nonjury 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: Defendant appeals from a judgment convicting him,
upon a nonjury verdict, of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]). Contrary to defendant’s
contention, a Darden hearing was unnecessary to establish probable
cause for his arrest because “there was sufficient evidence at the
suppression hearing to establish probable cause for [the] arrest
independent of the [confidential informant’s] statements” (People v
Anderson, 104 AD3d 968, 971, lv denied 21 NY3d 1013; see People v
McCullough, 104 AD3d 1343, 1344, lv denied 21 NY3d 1017). Two police
officers testified that they observed the muffler dragging from the
vehicle in which defendant was a passenger, which justified their stop
of the vehicle (see People v Robinson, 97 NY2d 341, 349; People v
Binion, 100 AD3d 1514, 1515, lv denied 21 NY3d 911). Within seconds
after defendant exited the vehicle, one of the officers observed a gun
in plain view on the floor of the passenger side where defendant had
been seated, which provided probable cause for defendant’s arrest (see
People v Coley, 286 AD2d 963, 964, lv denied 97 NY2d 728).
We reject defendant’s contention that he was denied the right to
counsel when Supreme Court refused to relieve defendant’s assigned
counsel and to assign new counsel before trial. “Throughout the[]
proceedings, defendant had four separate attorneys assigned to
represent him. He was not satisfied with any of them and sought to
have each replaced. The court properly denied defendant’s request to
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KA 08-01362
appoint a fifth attorney inasmuch as defendant did not present good
cause for a substitution of counsel” (People v DePounceau, 96 AD3d
1345, 1346, lv denied 19 NY3d 1025). As he had done with his three
previous attorneys, defendant raised only general complaints about his
fourth assigned attorney, and therefore failed to “make specific
factual allegations of serious complaints about counsel” sufficient to
trigger the requisite minimal inquiry (People v Porto, 16 NY3d 93, 99-
100).
Inasmuch as the court “conducted the requisite searching inquiry
to insure that defendant’s request to proceed pro se was accompanied
by a knowing, voluntary and intelligent waiver of the right to
counsel” (DePounceau, 96 AD3d at 1347 [internal quotation marks
omitted]), we reject defendant’s further contention that he was denied
the right to counsel when he proceeded pro se at his suppression and
predicate felony hearings, and at sentencing. When defendant, “ ‘who
was not totally unfamiliar with criminal procedure, so determinedly
and so unequivocally insisted on rejecting counsel and proceeding [pro
se], the court had no recourse but to permit him to do so’ ” (id. at
1346, quoting People v Medina, 44 NY2d 199, 209).
Defendant failed to preserve for our review his contention that
the court’s adverse inference charge “was an insufficient sanction for
the . . . loss of [photographs of the gun and the exterior of the
vehicle] by the police,” inasmuch as he made no request for any other
remedy after the court agreed to give the adverse inference charge
(People v Anonymous, 38 AD3d 438, 439, lv denied 8 NY3d 981). We
decline to exercise our power to review defendant’s contention as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]). Contrary to defendant’s further contention, defense counsel was
not ineffective in failing to request a more severe sanction. Indeed,
“[i]t is well settled that defense counsel cannot be deemed
ineffective for failing to ‘make a motion or argument that has little
or no chance of success’ ” (People v Noguel, 93 AD3d 1319, 1320, lv
denied 19 NY3d 965, quoting People v Stultz, 2 NY3d 277, 287, rearg
denied 3 NY3d 702).
Entered: February 7, 2014 Frances E. Cafarell
Clerk of the Court