SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1140 

KA 12-01613 

PRESENT: CENTRA, J.P., FAHEY, SCONIERS, WHALEN, AND DEJOSEPH, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

JAVELL FOX, DEFENDANT-APPELLANT. 

 

PETER J. DIGIORGIO, JR., 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 (Barry M.

Donalty, J.), rendered May 21, 2012. The judgment convicted

defendant, after a nonjury trial, of criminal possession of a

controlled substance in the third degree, criminal possession of a

controlled substance in the fourth degree, resisting arrest and

harassment in the second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon a nonjury verdict of, inter alia, criminal possession of a

controlled substance in the third degree (Penal Law § 220.16 [1]). 

The charges arose from an incident involving the traffic stop by a

police officer of a vehicle in which defendant was a passenger. 

During the stop, defendant was instructed to exit the vehicle and,

while being frisked by a police officer, defendant pushed him and

fled. The police officer who stopped the vehicle and an assisting

police officer captured defendant and arrested him. After the arrest,

the police officers found drugs on the ground where defendant had been

standing and under the backseat of the patrol car where defendant had

been sitting.

Defendant contends that County Court erred in denying his motion

to suppress the above physical evidence inasmuch as the initial frisk

was unlawful, which renders the subsequent arrest unlawful and any

evidence discovered thereafter by the police inadmissible. We reject

that contention. Even assuming, arguendo, that the frisk was

unlawful, we conclude that defendant’s act of pushing the frisking

officer was not “spontaneous and precipitated by the illegality . . .

[but] was a calculated act not provoked by the unlawful police

activity and thus attenuated from it” (People v Wilkerson, 64 NY2d

749, 750; see People v Stone, 197 AD2d 356, 356, lv denied 82 NY2d
-2- 1140 

KA 12-01613 

904). We therefore conclude that there was probable cause for

defendant’s subsequent arrest for harassment of the frisking officer

(cf. People v Felton, 78 NY2d 1063, 1064-1065). Consequently, the

drugs seized from defendant’s person and the backseat of the patrol

car were discovered incident to a lawful arrest (see People v Cooper,

85 AD3d 1594, 1595, affd 19 NY3d 501). 

We reject defendant’s further contention that the evidence is

legally insufficient to support the conviction for harassment and

resisting arrest. Viewing the evidence in the light most favorable to

the People (see generally People v Khan, 18 NY3d 535, 541), we

conclude that there is a “valid line of reasoning and permissible

inferences” that could rationally lead the court to determine that

defendant harassed the arresting officer and resisted arrest (People v

Bleakley, 69 NY2d 490, 495). 

We reject defendant’s contention that he was denied effective

assistance of counsel. Initially, we conclude that defendant is not

entitled to a reconstruction hearing to determine the contents of a

conversation between the court and defense counsel that allegedly

concerned privileged attorney-client matters. The court placed a

summary of the conversation on the record, and defense counsel agreed

to that summary. We conclude that defense counsel was not ineffective

for having such a conversation with the court inasmuch as the purpose

of the conversation was to ensure that defense counsel did not “breach

. . . any recognized professional duty” to either defendant or the

court (People v Andrades, 4 NY3d 355, 362). With respect to the

remaining grounds that defendant raises in support of his contention

of ineffective assistance of counsel, we conclude that “the evidence,

the law, and the circumstances of [this] particular case, viewed in

totality and as of the time of the representation, reveal that the

attorney provided meaningful representation” (People v Baldi, 54 NY2d

137, 147; see People v Hall, 106 AD3d 1513, 1514, lv denied 22 NY3d

956). To the extent that defendant’s claims of ineffective assistance

of counsel “involve matters outside the record on appeal . . . [they]

must be raised by way of a motion pursuant to CPL 440.10” (People v

Brown, 120 AD3d 1545, 1546; see People v Reed, 115 AD3d 1334, 1337, lv

denied 23 NY3d 1024).

Finally, defendant’s sentence is not unduly harsh or severe.

Entered: January 2, 2015 Frances E. Cafarell

Clerk of the Court