SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

53 

KA 13-01197 

PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND CURRAN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

DAYMOND HARRIS, DEFENDANT-APPELLANT. 

 

WILLIAM M. ROTH, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF

COUNSEL), FOR RESPONDENT. 

 

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

Dwyer, J.), rendered March 20, 2013. The judgment convicted

defendant, upon a jury verdict, of criminal possession of a controlled

substance in the fourth degree and criminal possession of a controlled

substance in the seventh degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by reversing that part convicting

defendant of criminal possession of a controlled substance in the

seventh degree and dismissing count three of the indictment with

respect to defendant, and as modified the judgment is affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of criminal possession of a controlled substance

in the fourth degree (Penal Law § 220.09 [1]), and criminal possession

of a controlled substance in the seventh degree (§ 220.03). To the

extent that defendant may be deemed to challenge the legal sufficiency

of the evidence, we conclude that his challenge lacks merit (see

People v Torres, 68 NY2d 677, 678-679; see generally People v

Bleakley, 69 NY2d 490, 495). Additionally, contrary to defendant’s

contention, viewing the evidence in light of the elements of the

crimes as charged to the jury (see People v Danielson, 9 NY3d 342,

349), we conclude that the verdict is not against the weight of the

evidence (see generally Bleakley, 69 NY2d at 495).

Defendant did not object to the introduction of evidence that he

was on parole at the time of the incident and thus failed to preserve

for our review his contention that County Court erred in permitting

the prosecutor to present that evidence (see People v Johnson, 45 AD3d

606, 606, lv denied 9 NY3d 1035; see also People v Ricks, 49 AD3d

1265, 1266, lv denied 10 NY3d 869, reconsideration denied 11 NY3d

740). In any event, we reject defendant’s contention. Defendant’s

parole officer testified that defendant resided at the residence in
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KA 13-01197 

which the cocaine was found, and that he had previously observed

defendant sleeping in the bedroom in which the drugs were discovered

by the police. That evidence was highly relevant to the issues at

trial, including, in this constructive possession case, whether

defendant exercised dominion and control over the bedroom in which the

drugs were found. Evidence that a defendant is on parole is

admissible where, as here, it is relevant to the issues at trial and

its probative value exceeds its prejudicial effect (see generally

People v Scarver, 121 AD3d 1539, 1540, lv denied 24 NY3d 1123; People

v Johnson, 94 AD3d 1144, 1145, lv denied 19 NY3d 997; People v Pryor,

48 AD3d 1217, 1217-1218, lv denied 10 NY3d 868). In addition, the

court minimized any prejudice to defendant by refusing to admit any

evidence detailing the specific crime of which defendant was convicted

(cf. People v Dowdell, 133 AD3d 1345, 1345-1346), and by giving prompt

cautionary instructions to the jury (see Johnson, 45 AD3d at 606;

People v Jones, 276 AD2d 292, 292, lv denied 95 NY2d 965; see

generally People v Kims, 24 NY3d 422, 439). 

Defendant further contends that he was denied effective

assistance of counsel by a series of purported errors by his trial

attorney. We reject that contention. With respect to defendant’s

contention that trial counsel was ineffective in failing to object to

the testimony of defendant’s parole officer, it is well settled that

“[a] defendant is not denied effective assistance of trial counsel

merely because counsel does not make a motion or argument that has

little or no chance of success” (People v Stultz, 2 NY3d 277, 287,

rearg denied 3 NY3d 702; see People v Gray, 27 NY3d 78, 88; People v

Caban, 5 NY3d 143, 152). For the reasons discussed above, the court

properly admitted the parole officer’s testimony, and defense counsel

therefore was not ineffective in failing to object to its

introduction. Similarly without merit is defendant’s contention that

counsel was ineffective in failing to request a circumstantial

evidence charge. “Defendant’s proximity to the cocaine, which was in

plain view, constitutes direct evidence of defendant’s possession of

the cocaine found in the apartment” (People v Wilson, 284 AD2d 958,

958, lv denied 96 NY2d 943; see People v Goodrum, 72 AD3d 1639, 1639,

lv denied 15 NY3d 773). Because this case involved both direct and

circumstantial evidence of guilt, a circumstantial evidence charge was

not warranted, and the failure to request such a charge “cannot be

said to have constituted ineffective assistance of counsel” (People v

Jones, 138 AD3d 1144, 1145, lv denied 28 NY3d 932; see People v Way,

115 AD3d 558, 558-559, lv denied 24 NY3d 1048; see also People v

Johnson, 303 AD2d 830, 836-837, lv denied 99 NY2d 655, reconsideration

denied 100 NY2d 583).

Furthermore, “ ‘it is incumbent on defendant to demonstrate the

absence of strategic or other legitimate explanations’ for defense

counsel’s allegedly deficient conduct” (People v Atkins, 107 AD3d

1465, 1465, lv denied 21 NY3d 1040, quoting People v Rivera, 71 NY2d

705, 709; see People v Benevento, 91 NY2d 708, 712; People v

Hutchings, 142 AD3d 1292, 1295), and defendant failed to meet that

burden with respect to the remainder of the purported failures of

counsel raised on appeal. Viewing the evidence, the law and the
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KA 13-01197 

circumstances of this case, in totality and as of the time of the

representation, and noting in particular that defendant was acquitted

of the most serious charge in the indictment (see People v Adsit, 125

AD3d 1430, 1431-1432, lv denied 25 NY3d 1068), we conclude that

defendant received meaningful representation (see generally People v

Baldi, 54 NY2d 137, 147).

Finally, we agree with defendant that the third count of the

indictment, charging him with criminal possession of a controlled

substance in the seventh degree, must be dismissed as an inclusory

concurrent count of the remaining charge of which defendant was

convicted (see CPL 300.30 [4]; 300.40 [3] [b]; People v Lee, 39 NY2d

388, 390; People v Smith, 134 AD3d 1568, 1569). We therefore modify

the judgment accordingly.

Entered: February 3, 2017 Frances E. Cafarell

Clerk of the Court