Opinion
695 KA 11-00669
06-19-2015
The PEOPLE of the State of New York, Respondent, v. Nixon ELIAN, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of attempted aggravated murder (Penal Law §§ 110.00, 125.26[1][a][i] ; [b] ). We reject defendant's contention that he was denied effective assistance of counsel based on defense counsel's failure to request that Supreme Court charge attempted assault in the second degree (§§ 110.00, 120.05[1] ) as a lesser included offense of those two counts of the indictment. “It is well settled that ‘[a] defendant is not denied effective assistance of trial counsel [where defense] counsel does not make ... a[n] argument that has little or no chance of success' ” (People v. March, 89 A.D.3d 1496, 1497, 933 N.Y.S.2d 477, lv. denied 18 N.Y.3d 926, 942 N.Y.S.2d 465, 965 N.E.2d 967, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883, rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 ). Viewing the evidence in the light most favorable to defendant (see People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225 ), we conclude that there is no reasonable view thereof to support a finding that defendant committed the lesser offense but not the greater (see generally People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376 ). We reject defendant's further contention that he was denied effective assistance of counsel based on defense counsel's failure to object to comments made by the prosecutor in his opening statement and on summation (see People v. Cox, 21 A.D.3d 1361, 1364, 802 N.Y.S.2d 813, lv. denied 6 N.Y.3d 753, 810 N.Y.S.2d 421, 843 N.E.2d 1161 ).
Defendant failed to preserve for our review his further contention that he was deprived of a fair trial by the admission in evidence of defendant's recorded statement in which he referenced an uncharged act of domestic violence. After defendant objected on the basis of a Molineux violation, the court gave curative instructions to the jury. Following those instructions, defense counsel neither objected further nor requested a mistrial, and thus, “ ‘[u]nder these circumstances, the curative instructions must be deemed to have corrected the error to the defendant's satisfaction’ ” (People v. Lane, 106 A.D.3d 1478, 1480–1481, 966 N.Y.S.2d 307, lv. denied 21 N.Y.3d 1043, 972 N.Y.S.2d 540, 995 N.E.2d 856, quoting People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 ). 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] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.