SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

618 

KA 07-01482 

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

LUTHER ADAIR, DEFENDANT-APPELLANT. 

 

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF

COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Onondaga County Court (Joseph E.

Fahey, J.), rendered June 6, 2006. The judgment convicted defendant,

upon a jury verdict, of attempted criminal possession of a weapon in

the second degree, criminal contempt in the first degree, harassment

in the second degree (two counts) and resisting arrest. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: On appeal from a judgment convicting him upon a jury

verdict of, inter alia, attempted criminal possession of a weapon in

the second degree (Penal Law §§ 110.00, 265.03 [former (2)]) and

criminal contempt in the first degree (§ 215.51 [b] [v]), defendant

contends that the evidence is legally insufficient to support the

conviction of attempted criminal possession of a weapon because the

People failed to establish that he attempted to possess the weapon in

question or that he intended to use it unlawfully against another

person. As defendant correctly concedes, that contention is

unpreserved for our review inasmuch as his motion for a trial order of

dismissal at the close of the People’s proof was not specifically

directed at the grounds raised on appeal (see People v Gray, 86 NY2d

10, 19). 

In any event, defendant’s contention is without merit. Defendant

was involved in an altercation with several uniformed police officers

who responded to a 911 call regarding a domestic dispute between

defendant and his girlfriend, on whose behalf an order of protection

had been issued against defendant. One of the officers testified at

trial that, during the altercation, he felt defendant tugging on the

holster for his service revolver and that, when the officer reached

down, he felt defendant’s hand on the top of the holster. The officer

yelled out to the other officers that defendant was trying to grab his
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KA 07-01482 

gun. After defendant was subdued and handcuffed, the officer observed

that one of the snaps on his holster had been opened. Another officer

testified at trial that he heard the snap on the holster open during

the altercation. Although defendant contends that his hand

inadvertently came into contact with the holster during the

altercation, we conclude that there is legally sufficient evidence

that defendant attempted to gain possession of the officer’s firearm. 

We further conclude that, considering the circumstances under which

defendant was grabbing for the officer’s firearm, there is a valid

line of reasoning and permissible inferences from which a rational

jury could have found that defendant’s intent in attempting to possess

the weapon was to use it unlawfully against the police officers (see

generally People v Bleakley, 69 NY2d 490, 495). In addition, viewing

the evidence in light of the elements of the crime of attempted

criminal possession of a weapon in the second degree as charged to the

jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the

verdict with respect to that count is not against the weight of the

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

We reject the further contention of defendant that County Court’s

denial of his two requests for an adjournment deprived him of a fair

trial. The decision whether to grant an adjournment lies in the sound

discretion of the trial court (see People v Spears, 64 NY2d 698,

699-700; People v McNear, 265 AD2d 810, 810-811, lv denied 94 NY2d

864), and the court’s exercise of that discretion “in denying a

request for an adjournment will not be overturned absent a showing of

prejudice” (People v Arroyo, 161 AD2d 1127, 1127, lv denied 76 NY2d

852; see People v Bones, 50 AD3d 1527, lv denied 10 NY3d 956). Here,

defendant failed to make the requisite showing of prejudice to warrant

reversal. We note that defense counsel offered no reason for his

first request for an adjournment, which was made on the first day of

trial. Defense counsel’s second request for an adjournment, made

after the People had rested, was based on the unavailability of the

officer who arrived at the scene during the altercation. That officer

was on the People’s witness list but did not testify because she was

out of town on vacation. In requesting the adjournment, defense

counsel stated that he anticipated that the officer’s testimony would

be “very favorable” to defendant. The record demonstrates, however,

that the officer in question was not present at the scene when

defendant attempted to gain possession of the other officer’s weapon,

and her police report did not indicate in any way that her testimony

would have been favorable to defendant. Under those circumstances, it

cannot be said that the court abused its discretion in denying defense

counsel’s requests for an adjournment (see People v Comfort, 60 AD3d

1298, 1299, lv denied 12 NY3d 924; People v Povio, 284 AD2d 1011, lv

denied 96 NY2d 923). 

Defendant contends that he was denied effective assistance of

counsel because defense counsel did not have sufficient time to

prepare for trial. Although defense counsel was assigned to represent

defendant 17 days prior to trial, it is apparent from his thorough

cross-examination of prosecution witnesses and his overall performance

that defense counsel had adequately prepared for trial. We conclude

that defense counsel was not ineffective based on his failure to
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KA 07-01482 

subpoena the officer who was on vacation at the time of the trial for

the reasons stated above. In addition, defense counsel cannot be

deemed ineffective for failing to move for a trial order of dismissal

with respect to the count charging defendant with attempted criminal

possession of a weapon on the grounds raised on appeal, inasmuch as

such a motion would have had “little or no chance of success” (People

v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702; see generally

People v Caban, 5 NY3d 143, 152). Viewing the evidence, the law and

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

representation, we conclude that defense counsel provided meaningful

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

Entered: May 6, 2011 Patricia L. Morgan

Clerk of the Court