| People v Nellons |
| 2020 NY Slip Op 05373 |
| Decided on October 2, 2020 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on October 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, TROUTMAN, AND DEJOSEPH, JJ.
703 KA 17-00969
v
RICARDO NELLONS, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), rendered May 8, 2017. 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 unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), defendant contends that Supreme Court erred in failing to conduct a Darden hearing with respect to a confidential informant who allegedly purchased heroin from defendant while working with the police (see generally People v Darden, 34 NY2d 177, 181 [1974], rearg denied 34 NY2d 995 [1974]). Because defendant did not request a Darden hearing or object to the court's failure to conduct one, however, he failed to preserve his contention for our review (see People v Brown, 181 AD3d 1301, 1303 [4th Dept 2020]; People v Cruz, 89 AD3d 1464, 1465 [4th Dept 2011], lv denied 18 NY3d 993 [2012]). We reject defendant's assertion that his contention is preserved for appellate review under CPL 470.05 (2) because the court "expressly decided" that a Darden hearing was not warranted. Even assuming, arguendo, that the court's statement that there is "no Darden here" constitutes an express ruling that defendant was not entitled to a Darden hearing, we conclude that such ruling was not "in re[s]ponse to a protest by a party" (id.).
We also reject defendant's related contention that his attorney was ineffective in failing to request a Darden hearing. A single error rises to the level of ineffective assistance of counsel only in the rare instance when the error " 'involve[s] an issue that is so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it, and it [is] evident that the decision to forego the contention could not have been grounded in a legitimate trial strategy' " (People v Keschner, 25 NY3d 704, 723 [2015], quoting People v McGee, 20 NY3d 513, 518 [2013]; see People v Flowers, 28 NY3d 536, 541 [2016]). Additionally, counsel is not ineffective for failing to "make a motion or argument that has little or no chance of success" (People v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]). Here, the issue whether defendant was entitled to a Darden hearing is not "clear-cut." Moreover, because there is no indication in the record that the confidential informant was "wholly imaginary" or that his communications to the police were "entirely fabricated" (Darden, 34 NY2d at 182; see People v Crooks, 27 NY3d 609, 613 [2016]), defendant has failed to establish that he would have been entitled to any relief had a Darden hearing been conducted.
Finally, we have reviewed defendant's remaining contentions and conclude that they lack merit.
Entered: October 2, 2020
Mark W. Bennett
Clerk of the Court