People v. Lewis

Appellate Division of the Supreme Court of New York

People v. Lewis

67 A.D.3d 1396, 888 N.Y.S.2d 814

Appellate Division of the Supreme Court of the State of New York·Decided November 13, 2009·Published·Cited by 6 cases

Opinion

Appeal from a judgment of the Monroe County Court (Frank E Geraci, Jr., J.), rendered October 12, 2005. The judgment convicted defendant, after a nonjury trial, of murder in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: The sole contention of defendant in this appeal from a judgment convicting him following a nonjury trial of murder in the second degree (Penal Law § 125.25 [1]) is that he was denied effective assistance of counsel. We reject that contention (see generally People v Flores, 84 NY2d 184, 186-187 [1994]; People v Baldi, 54 NY2d 137, 147 [1981]). Defense counsel’s failure to make various motions that had little or no chance of success does not constitute ineffective assistance of counsel (see People v McDuffie, 46 AD3d 1385, 1386 [2007], lv denied 10 NY3d 867 [2008]; People v Dashnaw, 37 AD3d 860, 863 [2007], lv denied 8 NY3d 945 [2007]; People v Johnson, 11 AD3d 979, 979-980 [2004], lv denied 3 NY3d 757 [2004]). In addition, defense counsel’s failure to object to County Court’s Sandoval ruling or to seek a compromise ruling did not constitute ineffective assistance of counsel inasmuch as the court in this nonjury trial “ ‘is presumed to have evaluated the evidence [of defendant’s past criminal conduct] only for the purpose of impeaching . . . defendant’s credibility and not as evidence of guilt of the crime charged’ ” (People v Maryon, 20 AD3d 911, 913 [2005], lv denied 5 NY3d 854 [2005]).

Contrary to defendant’s further contention, neither defense counsel’s failure to object to the prosecutor’s allegedly improper remarks during summation nor defense counsel’s limited cross-[1397]*1397examination of certain witnesses deprived defendant of effective assistance of counsel, particularly in the context of this nonjury trial (see Maryon, 20 AD3d at 913; see also People v Walker, 50 AD3d 1452, 1453 [2008], lv denied 11 NY3d 795 [2008], denied reconsideration 11 NY3d 931 [2008]). Present—Martoche, J.P., Smith, Peradotto, Green and Pine, JJ.

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Appeal from a judgment of the Monroe County Court (Frank E Geraci, Jr., J.), rendered October 12, 2005. The judgment convicted defendant, after a nonjury trial, of murder in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: The sole contention of defendant in this appeal from a judgment convicting him following a nonjury trial of murder in the second degree (Penal Law § 125.25 [1]) is that he was denied effective assistance of counsel. We reject that contention (see generally People v Flores, 84 NY2d 184, 186-187 [1994]; People v Baldi, 54 NY2d 137, 147 [1981]). Defense counsel’s failure to make various motions that had little or no chance of success does not constitute ineffective assistance of counsel (see People v McDuffie, 46 AD3d 1385, 1386 [2007], lv denied 10 NY3d 867 [2008]; People v Dashnaw, 37 AD3d 860, 863 [2007], lv denied 8 NY3d 945 [2007]; People v Johnson, 11 AD3d 979, 979-980 [2004], lv denied 3 NY3d 757 [2004]). In addition, defense counsel’s failure to object to County Court’s Sandoval ruling or to seek a compromise ruling did not constitute ineffective assistance of counsel inasmuch as the court in this nonjury trial “ ‘is presumed to have evaluated the evidence [of defendant’s past criminal conduct] only for the purpose of impeaching . . . defendant’s credibility and not as evidence of guilt of the crime charged’ ” (People v Maryon, 20 AD3d 911, 913 [2005], lv denied 5 NY3d 854 [2005]).

Contrary to defendant’s further contention, neither defense counsel’s failure to object to the prosecutor’s allegedly improper remarks during summation nor defense counsel’s limited cross-[1397]*1397examination of certain witnesses deprived defendant of effective assistance of counsel, particularly in the context of this nonjury trial (see Maryon, 20 AD3d at 913; see also People v Walker, 50 AD3d 1452, 1453 [2008], lv denied 11 NY3d 795 [2008], denied reconsideration 11 NY3d 931 [2008]). Present—Martoche, J.P., Smith, Peradotto, Green and Pine, JJ.

People v. Lewis, 67 A.D.3d 1396, 888 N.Y.S.2d 814 (N.Y. Ct. App. 2009).

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Opinion

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