People v. Watson
The People of the State of New York v. Randolph Watson
Full Opinion (html_with_citations)
On appeal from a judgment convicting him, upon a jury verdict, of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]) and assault in the second degree (§ 120.05 [2]), defendant contends that his statements to the police to the effect of “I’ll show you the gun,” made after he had invoked his right to counsel, were not spontaneous and should have been suppressed. We reject that contention. Although defendant did not specifically contend before Supreme Court that it had applied the incorrect legal standard in concluding that his statements were spontaneous and thus that his right to counsel was not thereby violated, we note that “the violation of the right to counsel may be raised for the first time on appeal” (People v Whetstone, 281 AD2d 904 [2001], lv denied 96 NY2d 909 [2001]; see People v Sierra, 85 AD3d 1659, 1660 [2011]). Nevertheless, “we conclude that the statements were spontaneous inasmuch as ‘they were in no way the product of an interrogation environment [or] the result of
Defendant further contends that his consent to the search that yielded the gun and ammunition was invalid because it was provided in the absence of counsel, and thus that the search was unlawful. Even assuming, arguendo, that we agree with defendant, we nevertheless conclude that the error is harmless. Indeed, there is no reasonable possibility that the constitutional error in failing to suppress the gun and the ammunition might have contributed to the conviction, and thus the error is harmless beyond a reasonable doubt (see People v Crimmins, 36 NY2d 230, 237 [1975]). In view of our determination, we do not reach defendant’s further related contention that the doctrine of inevitable discovery is inapplicable.
Defendant failed to preserve for our review his contentions that the police lacked probable cause to arrest him and that his statements, the gun, and the ammunition should have been suppressed as the product of an unlawful arrest (see People v Johnson, 60 AD3d 695 [2009], lv denied 12 NY3d 916 [2009]; People v Johnson, 52 AD3d 1286, 1287 [2008], lv denied 11 NY3d 738 [2008]; People v Hyla, 291 AD2d 928 [2002], lv denied 98 NY2d 652 [2002]). Defendant also failed to preserve for our review his contention that the suppression hearing testimony of the police officers was patently tailored to nullify constitutional objections and was incredible as a matter of law (see CPL 470.05 [2]). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
To the extent that defendant contends that defense counsel was ineffective for failing to raise the issues of probable cause for his arrest and the credibility of the police officers’ testimony at the suppression hearing, we reject that contention because “[t]here can be no denial of effective assistance of . . . counsel arising from [defense] counsel’s failure to ‘make a motion or argument that has little or no chance of success’ ” (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]; see People v McGee, 87 AD3d 1400, 1403 [2011]; People v Biro, 85 AD3d 1570, 1572 [2011]).