People v. Johnson

Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.), rendered June 12, 2008. The judgment convicted defendant, upon a nonjury verdict, of criminal possession of a weapon 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 criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). Contrary to defendant’s contention, a Darden hearing was unnecessary to establish probable cause for his arrest because “there was sufficient evidence at the suppression hearing to establish probable cause for [the] arrest independent of the [confidential informant’s] statements” (People v Anderson, 104 AD3d 968 , 971 [2013], lv denied 21 NY3d 1013 [2013]; see People v McCullough, 104 AD3d 1343 , 1344 [2013], lv denied 21 NY3d 1017 [2013]). Two police officers testified that they observed the muffler dragging from the vehicle in which defendant was a passenger, which justified their stop of the vehicle (see People v Robinson, 97 NY2d 341 , 349 [2001]; People v Binion, 100 AD3d 1514 , 1515 [2012], lv denied 21 NY3d 911 [2013]). Within seconds after defendant exited the vehicle, one of the officers observed a gun in plain view on the floor of the passenger side where defendant had been seated, which provided probable cause for defendant’s arrest (see People v Coley, 286 AD2d 963 , 964 [2001], lv denied 97 NY2d 728 [2002]).

Inasmuch as the court “conducted the requisite searching inquiry to insure that defendant’s request to proceed pro se was accompanied by a knowing, voluntary and intelligent waiver of the right to counsel” (DePonceau, 96 AD3d at 1347 [internal quotation marks omitted]), we reject defendant’s further contention that he was denied the right to counsel when he proceeded pro se at his suppression and predicate felony hearings, and at sentencing. When defendant, “ ‘who was not totally unfamiliar with criminal procedure, so determinedly and so unequivocally insisted on rejecting counsel and. proceeding [pro se], the court had no recourse but to permit him to do so’ ” (id. at 1346, quoting People v Medina, 44 NY2d 199 , 209 [1978]).

Defendant failed to preserve for our review his contention that the court’s adverse inference charge “was an insufficient sanction for the . . . loss of [photographs of the gun and the exterior of the vehicle] by the police,” inasmuch as he made no request for any other remedy after the court agreed to give the adverse inference charge (People v Anonymous, 38 AD3d 438 , 439 [2007], lv denied 8 NY3d 981 [2007]). We decline to exercise our power to review defendant’s contention as a matter of discretion in the interest of justice {see CPL 470.15 [6] [a]). Contrary to defendant’s further contention, defense counsel was not ineffective in failing to request a more severe sanction. Indeed, “[i]t is well settled that defense counsel cannot be deemed ineffective for failing to ‘make a motion or argument that has little or no chance of success’ ” (People v Noguel, 93 AD3d 1319 , 1320 [2012], lv denied 19 NY3d 965 [2012], quoting People v Stultz, 2 NY3d 277 , 287 [2004], rearg denied 3 NY3d 702 [2004]). Present — Scudder, PJ., Smith, Centra, Carni and Whalen, JJ.