Opinion
952 KA 17–01638
10-04-2019
The PEOPLE of the State of New York, Respondent, v. Elijah BELL, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, two counts of assault in the second degree ( Penal Law § 120.05[3] ), defendant contends that the conviction of those counts is not supported by sufficient evidence and that the verdict with respect to those counts is against the weight of the evidence. Defendant failed to preserve his challenge to the sufficiency of the evidence inasmuch as his motion for a trial order of dismissal and his renewed motion were not " ‘specifically directed’ " at the error alleged on appeal ( People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; see People v. Townsley , 50 A.D.3d 1610, 1611, 856 N.Y.S.2d 424 [4th Dept. 2008], lv denied 11 N.Y.3d 742, 864 N.Y.S.2d 400, 894 N.E.2d 664 [2008] ; People v. Jackson , 4 A.D.3d 773, 773, 771 N.Y.S.2d 431 [4th Dept. 2004], lv denied 2 N.Y.3d 801, 781 N.Y.S.2d 300, 814 N.E.2d 472 [2004] ). In any event, the contention lacks merit. Viewing the evidence in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that there is a valid line of reasoning and permissible inferences that would lead a rational juror to conclude that defendant was attempting to prevent correction officers from performing their lawful duty and, in doing so, caused physical injuries to two of the correction officers (see People v. Campbell , 72 N.Y.2d 602, 604–605, 535 N.Y.S.2d 580, 532 N.E.2d 86 [1988] ;see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
We further conclude that the verdict on those counts is not against the weight of the evidence. According great deference to the jury's " ‘opportunity to view the witnesses, hear the testimony and observe demeanor’ " ( People v. Mateo , 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 [2004], cert denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828 [2004] ), and viewing the evidence in light of the elements of assault in the second degree as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we are satisfied that the jury did not "fail[ ] to give the evidence the weight it should be accorded" ( Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant further contends that he was denied effective assistance of counsel due to defense counsel's failure to preserve defendant's challenge to the sufficiency of the evidence and failure to request a justification defense instruction. Defense counsel's failure to preserve a challenge to the legal sufficiency of the evidence "does not constitute ineffective assistance because [that] challenge[ ] would not have been meritorious" ( People v. Person , 153 A.D.3d 1561, 1563–1564, 62 N.Y.S.3d 231 [4th Dept. 2017], lv denied 30 N.Y.3d 1118, 77 N.Y.S.3d 343, 101 N.E.3d 984 [2018] ; see People v. Campbell , 128 A.D.3d 1401, 1402, 7 N.Y.S.3d 802 [4th Dept. 2015], lv denied 26 N.Y.3d 927, 17 N.Y.S.3d 89, 38 N.E.3d 835 [2015] ). "A defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success" ( People v. Stultz , 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004] ). With respect to defense counsel's failure to request a justification defense instruction, defendant has failed "to demonstrate the absence of strategic or other legitimate explanations" for defense counsel's failure to request that instruction ( People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; see People v. Johnson , 136 A.D.3d 1338, 1339, 25 N.Y.S.3d 474 [4th Dept. 2016], lv denied 27 N.Y.3d 1134, 39 N.Y.S.3d 116, 61 N.E.3d 515 [2016] ). Viewing the evidence, the law, and the circumstances of this case in their totality at the time of the representation, we conclude that defense counsel provided meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).