People v. Parker

196 A.D.3d 651

148 N.Y.S.3d 387 (Mem)

The PEOPLE, etc., respondent,

v.Aaron PARKER, appellant.

2017–01580, 2017–01581, 2017–01582, 2017–05183

Ind. Nos. 15–00395, 15–00449, 15–00451, 15–00455

Supreme Court, Appellate Division, Second Department, New York.

Submitted—January 22, 2019

July 21, 2021

Del Atwell, East Hampton. NY, for appellant.

Thomas E. Walsh II, District Attorney, New City, N.Y. (Carrie A. Ciganek and Amanda Doty of counsel), for respondent.

ROBERT J. MILLER, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeals by the defendant from four judgments of the County Court, Rockland County (David S. Zuckerman, J.), all rendered January 17, 2017, convicting him of (1) criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, under Indictment No. 15–00395; (2) criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and conspiracy in the fourth degree (two counts), upon his plea of guilty, under Indictment No. 15–00449; (3) criminal sale of a controlled substance in the second degree, criminal possession of a controlled substance in the third degree, and conspiracy in the second degree (two counts), upon his plea of guilty, under Indictment No. 15–00451; and (4) operating as a major trafficker, upon his plea of guilty, under Indictment No. 15–00455, and imposing sentences. The appeal from the judgment rendered under Indictment No. 15–00395 brings up for review the denial of that branch of the defendant's omnibus motion which was to suppress physical evidence. Justice Miller has been substituted for former Justice Leventhal (see 22 NYCRR 1250.1 [b]).

ORDERED that the judgment rendered under Indictment No. 15–00395 is reversed, on the law and the facts, that branch of the defendant's omnibus motion under Indictment No. 15–00395 which was to suppress physical evidence is granted, that indictment is dismissed insofar as asserted against the defendant, and that matter is remitted to the County Court, Rockland County, for the purpose of entering an order in its discretion pursuant to CPL 160.50 ; and it is further,

ORDERED that the judgments rendered under Indictment Nos. 15–00449, 15–00451, and 15–00455 are affirmed.

For the reasons stated in ( People v. Mortel, 197 A.D.3d 196, 152 N.Y.S.3d 68 [decided herewith]), we conclude that the County Court should have granted that branch of the defendant's omnibus motion under Indictment No. 15–00395 which was to suppress physical evidence. In light of this conclusion, and under the circumstances of this case, the judgment rendered under Indictment No. 15–00395 must be reversed, that indictment dismissed insofar as asserted against the defendant, and that matter remitted to the County Court, Rockland County, for the purpose of entering an order in its discretion pursuant to CPL 160.50. We need not, and do not, reach the defendant's remaining contentions to the extent that they are addressed to that judgment.

The defendant does not contend that the remaining three judgments appealed from, which were each rendered upon the defendant's pleas of guilty, were in any way affected by the County Court's determination of that branch of the defendant's omnibus motion under Indictment No. 15–00395 which was to suppress physical evidence. Rather, the defendant raises other arguments that are addressed to those judgments. They are without merit.

Contrary to the defendant's contention, the People established good cause and the lack of any prejudice to the defendant, entitling them to an extension of time to comply with the notice requirement contained in CPL 700.70 (see People v. Romero, 120 A.D.3d 947, 949, 991 N.Y.S.2d 212 ; see also People v. Liberatore, 79 N.Y.2d 208, 212–213, 581 N.Y.S.2d 634, 590 N.E.2d 219 ; cf. People v. Cardella, 161 A.D.2d 780, 781–782, 556 N.Y.S.2d 662 ).

Furthermore, "[t]o prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's [alleged shortcomings]" ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ). Here, on...