H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT
OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P.
MAXWELL OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND
from a judgment of the Onondaga County Court (Thomas J.
Miller, J.), rendered April 4, 2014. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a
controlled substance in the third degree (two counts) and
criminally using drug paraphernalia in the second degree.
hereby ORDERED that the judgment so appealed from is
Defendant appeals from a judgment convicting him, after a
jury trial, of two counts of criminal possession of a
controlled substance in the third degree (Penal Law §
220.16 , ) and criminally using drug paraphernalia in
the second degree (§ 220.50 ). At the outset, we
agree with defendant that the court erred in denying his
motion to suppress certain text messages collected from his
cell phones (see People v Marinez, 121 A.D.3d 423,
423-424). It is undisputed that, after the defendant was
pulled over, the responding police officers recovered two
cell phones from the vehicle's glove box and one of them
looked through certain text messages on those phones. In our
view, that police action constituted an illegal warrantless
search of defendant's cell phones, thereby mandating
suppression of the text messages (see id.). The fact
that the officers subsequently applied for a search warrant
covering the cell phones is of no moment inasmuch as they
"used the [illegal] search to assure themselves that
there [was] cause to obtain a warrant" in the first
instance (People v Burr, 70 N.Y.2d 354, 362, cert
denied 485 U.S. 989; see People v Perez, 266 A.D.2d
242, 243, lv dismissed 94 N.Y.2d 923).
conclude, however, that the error is harmless inasmuch as the
evidence of defendant's guilt is overwhelming, and there
is no significant probability that defendant would have been
acquitted if the court had not admitted the text messages in
evidence (see generally People v Crimmins, 36 N.Y.2d
230, 241-242). Defendant was discovered driving a vehicle
that contained a wholesale brick of crack, seven individually
bagged ecstasy-analogue tabs, a scale, and empty baggies.
Furthermore, defendant demonstrated consciousness of guilt by
initially fleeing from police; over $600 in cash was
recovered from defendant's person; and defendant's
passenger testified that defendant was a drug dealer who was
dealing out of his car. Thus, in our view, there is no
significant probability that defendant would have been
acquitted but for the erroneously-admitted text messages
(see People v Solano, 138 A.D.3d 525, 526, lv
denied 27 N.Y.3d 1155). In addition, viewing the
evidence in light of the elements of the crimes as charged to
the jury (see People v Danielson, 9 N.Y.3d 342,
349), we reject defendant's further contention that the
verdict is contrary to the weight of the evidence (see
People v Bleakley, 69 N.Y.2d 490, 495).
to defendant's further contention, the court did not
abuse its discretion in refusing to assign him new counsel.
The record establishes that the court made "the
requisite minimal inquiry into defendant's reasons for
requesting new counsel... and defendant did not establish a
serious complaint concerning defense counsel's
representation and thus did not suggest a serious possibility
of good cause for substitution [of counsel]" (People
v Jones, 114 A.D.3d 1239, 1240, lv denied 23 N.Y.3d 1038');">23 N.Y.3d 1038
[internal quotation marks omitted]). "[T]he fact that
defendant and his attorney may have disagreed with respect
to... strategy is not sufficient to warrant a
substitution" (People v Tenace, 256 A.D.2d 928, 930,
lv denied 93 N.Y.2d 902, cert denied 530 U.S. 1217,
reh denied 530 U.S. 1290).
to defendant's contention, the court did not abuse its
discretion in denying his motion for a missing witness charge
with respect to one of the responding police officers who
testified at the suppression hearing (see generally
People v Macana, 84 N.Y.2d 173, 180). Even assuming,
arguendo, that the officer's testimony would not have
been cumulative, we conclude that a missing witness charge
was not warranted given the officer's unavailability (see
People v Gonzalez, 68 N.Y.2d 424, 428).
reject defendant's contention that he was denied
effective assistance of counsel. To the extent that defendant
is calling counsel's effectiveness into question by
virtue of his alleged failure to seek a spoliation sanction
at the suppression hearing, that contention involves matters
outside the record on appeal and must be raised by way of a
motion pursuant to CPL article 440. With respect to
defendant's remaining claims of ineffective assistance of
counsel, we conclude that the evidence, the law, and the
circumstances of this case, viewed in totality and as of the
time of representation, establish that he received meaningful
representation (see generally People v Baldi, 54
N.Y.2d 137, 147).
sentence is neither unduly harsh nor severe. Defendant's
remaining contentions are not preserved for our review, and
we decline to exercise our power to review them as a matter