SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1248 

KA 13-00656 

PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ANTHONY PARSON, JR., DEFENDANT-APPELLANT.

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF

COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DIANE S. MELDRIM OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Erie County Court (Michael L.

D’Amico, J.), rendered August 28, 2012. 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

affirmed.

Memorandum: Defendant appeals from a judgment convicting him

upon his guilty plea of criminal possession of a weapon in the second

degree (Penal Law § 265.03 [3]). We reject defendant’s contention

that County Court erred in refusing to suppress his statements and

evidence seized by the police from his vehicle. The court credited

the police officer’s testimony that, as he approached defendant’s

vehicle from the opposite direction in the late evening, he observed

that the vehicle had a cracked windshield and an object hanging from

the rearview mirror. The officer made a U-turn and stopped

defendant’s vehicle. When defendant rolled down the window, the

officer smelled burnt marihuana and asked defendant if he had been

using marihuana. Defendant responded yes, and the officer then asked

defendant to exit the vehicle. The officer searched both defendant

and the vehicle and found marihuana on defendant’s person and in the

vehicle, and also found a weapon inside the vehicle. Contrary to

defendant’s contention, the officer properly stopped defendant’s

vehicle upon observing violations of Vehicle and Traffic Law § 375

(22) and (30) (see People v Robinson, 97 NY2d 341, 349; People v

Dempsey, 79 AD3d 1776, 1777, lv denied 16 NY3d 830). We accord great

weight to the court’s determination “ ‘because of its ability to

observe and assess the credibility of the witnesses,’ ” and conclude

that its findings should not be disturbed (People v Mejia, 64 AD3d

1144, 1145, lv denied 13 NY3d 861; see People v Daniels, 117 AD3d

1573, 1575; see generally People v Prochilo, 41 NY2d 759, 761). 
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Defendant’s contentions concerning the propriety of the search of his

person and his vehicle are not preserved for our review (see CPL

470.05 [2]; People v Adger, 83 AD3d 1590, 1591, lv denied 17 NY3d

857), and we decline to exercise our power to review them as a matter

of discretion in the interest of justice (see CPL 470.15 [3] [c]).

Defendant next contends that he was denied effective assistance

of counsel because defense counsel failed to cross-examine the police

witness at the suppression hearing with a vehicle inventory form that

purportedly showed that there was no damage to the vehicle. Defendant

contends that such evidence supported his assertion that, contrary to

the officer’s testimony, the windshield was not cracked. The vehicle

inventory form is not a part of the record on appeal, and therefore

defendant’s contention must be raised in a motion pursuant to CPL

article 440 (see People v Dizak, 93 AD3d 1182, 1185, lv denied 19 NY3d

972, reconsideration denied 20 NY3d 932). 

We disagree with our dissenting colleague that defendant was

denied effective assistance of counsel based on defense counsel’s

failure to advance a more vigorous challenge to the officer’s

testimony regarding his reasons for stopping defendant’s vehicle. 

Although defendant’s contention survives his guilty plea to the extent

that he contends that his plea was infected by the allegedly

ineffective assistance (see People v Neil, 112 AD3d 1335, 1336, lv

denied 23 NY3d 1040; People v Brown, 63 AD3d 1650, 1651), we conclude

that it lacks merit. “In the context of a guilty plea, a defendant

has been afforded meaningful representation when he or she receives an

advantageous plea and nothing in the record casts doubt on the

apparent effectiveness of counsel” (People v Ford, 86 NY2d 397, 404). 

Here, defendant received an advantageous plea inasmuch as he received

the minimum sentence for his conviction. Defense counsel crossexamined the officer about the object that was hanging from the

vehicle’s mirror, and asked the officer if the lighting conditions

were “enough” to “be able to see the cracked windshield.” In

addition, defense counsel made a persuasive argument at the conclusion

of the suppression hearing that the officer’s testimony regarding the

cracked windshield was not credible and that there “was really no

probable cause for the stop of that vehicle.” The fact that the court

did not agree with defense counsel’s assessment of the credibility of

the officer does not amount to ineffective assistance of counsel. 

Indeed, “ ‘[s]peculation that a more vigorous cross-examination might

have [undermined the credibility of a witness] does not establish

ineffectiveness of counsel’ ” (People v Williams, 110 AD3d 1458, 1459-

1460, lv denied 22 NY3d 1160). 

All concur except FAHEY, J., who dissents and votes to reverse in

accordance with the following Memorandum: I respectfully dissent

because in my view defendant was deprived of his right to effective

assistance of counsel. Initially, defendant contends that he was

denied effective assistance of counsel inasmuch as defense counsel did

not introduce in evidence a vehicle inventory form reflecting that the

windshield of the vehicle defendant was driving at the time he was

stopped by the police was undamaged. The vehicle inventory form

directly contradicts the testimony of the police officer who stopped
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KA 13-00656 

that vehicle inasmuch as that officer testified at the suppression

hearing that he stopped the car because of a “pretty big” crack that

“covered most of the windshield.” Notably, the vehicle inventory form

is attached to defendant’s appellate brief and is signed by the

testifying police officer. It indicates that there was “no damage” to

the vehicle, contradicting the officer’s testimony. Inasmuch as the

vehicle inventory form is outside the record on appeal, however, I

agree with the majority that defendant’s contention concerning the

vehicle inventory form is properly the subject of a motion pursuant to

CPL article 440 (see People v Dizak, 93 AD3d 1182, 1185, lv denied 19

NY3d 972, reconsideration denied 20 NY3d 932).

I further conclude, however, that defendant was deprived of

meaningful representation by defense counsel’s deficient performance

at the suppression hearing. In my view, defense counsel did not

adequately explore the circumstances of the subject traffic stop. In

particular, I note that he did not inquire in detail concerning the

lighting conditions present at the time of the stop; the proximity of

the vehicle defendant was driving to a streetlight; the weather at the

time of the traffic stop; or the location of the vehicle defendant was

driving in relation to the officer’s location when he allegedly

observed the crack in the windshield. I thus conclude that defense

counsel’s deficient cross-examination was tantamount to a failure to

supply County Court with a rationale to grant suppression (see People

v Clermont, 22 NY3d 931, 933-934; cf. People v Mobley, 120 AD3d 916,

919), and that defendant was denied effective assistance of counsel

thereby (see generally People v Baldi, 54 NY2d 137, 147). 

Consequently, I would reverse the judgment, vacate the plea and remit

the matter to County Court for further proceedings on the indictment. 

Entered: November 21, 2014 Frances E. Cafarell

Clerk of the Court