Opinion
2015-10-2
The PEOPLE of the State of New York, Respondent, v. Anthony J. DIXON, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (William G. Pixley of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (William G. Pixley of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[1][b]; [3] ), and one count of reckless endangerment in the first degree (§ 120.25). Defendant contends that the People failed to establish that the police had reasonable suspicion to detain him for a showup identification because they failed to establish the reliability of the dog tracking evidence that the police used to assist them in locating him. Defendant's contention is not preserved for our review ( see People v. Lewis, 97 A.D.3d 1097, 1097–1098, 947 N.Y.S.2d 745, lv. denied19 N.Y.3d 1103, 955 N.Y.S.2d 559, 979 N.E.2d 820; People v. Cruz, 89 A.D.3d 1464, 1465–1466, 932 N.Y.S.2d 650, lv. denied18 N.Y.3d 993, 945 N.Y.S.2d 647, 968 N.E.2d 1003; People v. Clark, 161 A.D.2d 1181, 1181, 555 N.Y.S.2d 971, lv. denied76 N.Y.2d 786, 559 N.Y.S.2d 991, 559 N.E.2d 685). In any event, the evidence at the suppression hearing, even without the dog tracking evidence, supports Supreme Court's determination that the police had the requisite reasonable suspicion. A description of the suspect was broadcast over the police radio, and officers arrived at the house where defendant was found crouching on the front porch, which was in geographic and temporal proximity to the scene of the crime, even before the dog tracking team arrived at that same location ( see People v. Carr, 99 A.D.3d 1173, 1175, 952 N.Y.S.2d 342, lv. denied20 N.Y.3d 1010, 960 N.Y.S.2d 353, 984 N.E.2d 328; People v. Johnson, 174 A.D.2d 694, 694–695, 571 N.Y.S.2d 550).
We reject defendant's further contention that he was denied effective assistance of counsel. The People established the relevance of a gray hooded sweatshirt found at the house where defendant was apprehended inasmuch as two witnesses observed the suspect wearing a gray hooded sweatshirt at the time of the shooting ( see People v. Schultz, 156 A.D.2d 944, 944, 548 N.Y.S.2d 829, lv. denied82 N.Y.2d 808, 604 N.Y.S.2d 944, 624 N.E.2d 1039). Therefore, defense counsel's failure to object to the admission of the sweatshirt in evidence does not constitute ineffective assistance of counsel inasmuch as such an objection would have had little to no chance of success ( see People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883, rearg. denied3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671). Although defense counsel failed to object to the lack of a foundation for the dog tracking evidence ( see People v. Towsley, 85 A.D.3d 1549, 1551, 924 N.Y.S.2d 708, lv. denied17 N.Y.3d 905, 933 N.Y.S.2d 660, 957 N.E.2d 1164; People v. Vandenbosch, 216 A.D.2d 884, 885, 628 N.Y.S.2d 904, lv. denied86 N.Y.2d 804, 632 N.Y.S.2d 517, 656 N.E.2d 616; People v. Abdullah, 134 A.D.2d 503, 504, 521 N.Y.S.2d 286, lv. denied71 N.Y.2d 965, 529 N.Y.S.2d 76, 524 N.E.2d 430), and failed to request a limiting instruction with respect to that evidence ( see People v. Gangler, 227 A.D.2d 946, 946, 643 N.Y.S.2d 839, lv. denied88 N.Y.2d 985, 649 N.Y.S.2d 392, 672 N.E.2d 618, reconsideration denied89 N.Y.2d 922, 654 N.Y.S.2d 724, 677 N.E.2d 296; Abdullah, 134 A.D.2d at 504, 521 N.Y.S.2d 286), we conclude that those errors were not so egregious and prejudicial to defendant as to deny him a fair trial ( see People v. Releford, 126 A.D.3d 1407, 1408, 4 N.Y.S.3d 804, lv. denied25 N.Y.3d 1170, 15 N.Y.S.3d 301, 36 N.E.3d 104; see generally People v. Turner, 5 N.Y.3d 476, 480, 806 N.Y.S.2d 154, 840 N.E.2d 123). The dog tracking evidence concerned only the issue of defendant's identity as the shooter, and the evidence established that the police located defendant after the shooting even without the dog tracking evidence. In addition, two witnesses identified defendant at trial as the shooter. We therefore conclude that the evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant was afforded meaningful representation ( see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.