People v Melnick (Mark)

[*1] People v Melnick (Mark) 2010 NY Slip Op 51170(U) [28 Misc 3d 126(A)] Decided on June 29, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 29, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., LaCAVA and IANNACCI, JJ
2008-1411 OR CR.

The People of the State of New York, Respondent,

against

Mark E. Melnick, Appellant.

Appeal from a judgment of the Justice Court of the Town of Montgomery, Orange County (Frederick Gorss, J.), rendered July 9, 2008. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the fourth degree and sentenced him to 30 days' incarceration.

ORDERED that the judgment of conviction is modified, as a matter of discretion in the interest of justice, by vacating the sentence imposed and by sentencing defendant to a three-year term of probation; as so modified, the judgment of conviction is affirmed. The matter is remitted to the Justice Court to determine the conditions of probation.

After a jury convicted defendant of criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]), the Justice Court sentenced him to 30 days' incarceration. On appeal, defendant contends that his trial counsel was ineffective and that the sentence was unduly harsh and excessive.

The alleged deficiencies in the representation of counsel, namely, his failure to move to suppress evidence and adequately to consult with defendant prior to trial, cannot properly be reviewed on appeal absent a motion pursuant to CPL 440 to expand the record to establish the facts and counsel's strategy in relation thereto (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998, 1000 [1982]; People v Polanco, 13 AD3d 100, 101 [2004]; see also People v Stultz, 2 NY3d 277, 284 [2004]). Insofar as the record permits review of this contention, without any indication that a suppression motion would have succeeded or a showing of the absence of a "strategic or other legitimate explanation" for such a failure, it cannot be said that counsel was ineffective on this ground (Rivera, 71 NY2d at 709; see e.g. People v Anderson, 305 AD2d 611, 612 [2003]; People v Fields, 287 AD2d 577 [2001]; People v Luna, 21 Misc 3d 135[A], 2008 NY Slip Op 52206[U] [App Term, 9th & 10th Jud Dists 2008]). There is no support in the record for defendant's remaining claim (e.g. People v Montana, 149 AD2d 738 [1989]).

However, upon our review of the facts and circumstances, we are persuaded that the interest of justice will be served by a modification of the sentence imposed, as heretofore indicated (CPL 470.15 [3] [c], 6 [b]; People v Michael T., 21 Misc 3d 145[A], 2008 NY Slip Op [*2]52558[U] [App Term, 9th & 10th Jud Dists 2008]).

Accordingly, the judgment of conviction is modified by vacating the sentence imposed and by sentencing defendant to a three-year term of probation. The matter is remitted to the Justice Court to determine the conditions of probation.

Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: June 29, 2010