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People v. Gregory

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


April 30, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DYANI A. GREGORY, APPELLANT.

Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), rendered March 5, 2007. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, June 9, 2010

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

Memorandum

Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the third degree (Penal Law § 265.02 [former (4)]). The conviction arises from an incident in which a police officer heard loud music coming from an empty vehicle parked on a public street and observed defendant standing near the open driver's side window. The officer issued a noise ordinance violation to defendant and determined that the vehicle should be towed and impounded pursuant to a City of Rochester towing ordinance. During an inventory search of the vehicle, the officer found, inter alia, a handgun and hospital discharge papers bearing defendant's name. In pretrial motions and during the suppression hearing, defense counsel unsuccessfully attempted to demonstrate that defendant did not own or possess the vehicle and thus that the police lacked probable cause to arrest him inasmuch as there was no connection between defendant and the handgun.

We reject the contention of defendant that he was denied effective assistance of counsel based on defense counsel's unsuccessful attempt to establish that certain physical evidence should be suppressed (see generally People v Baldi, 54 NY2d 137, 147 [1981]). That contention is "based largely on [defendant's] hindsight disagreement[ ] with defense counsel's . . . strategies, and defendant failed to meet his burden of establishing the absence of any legitimate explanations for those strategies" (People v Morrison, 48 AD3d 1044, 1045 [2008], lv denied 10 NY3d 867 [2008]; see People v Benevento, 91 NY2d 708, 712-713 [1998]).

Present---Scudder, P.J., Peradotto, Lindley and Sconiers, JJ.

20100430

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