Opinion
965 KA 17–00763
10-05-2018
The PEOPLE of the State of New York, Respondent, v. Haithem HASAN, Defendant–Appellant.
J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the first degree ( Penal Law § 120.10[1] ), menacing in the second degree (§ 120.14[1] ), and harassment in the second degree (§ 240.26[1] ). Defendant failed to preserve for our review his contention that the prosecutor improperly interfered with "a defense witness' free and unhampered choice to testify" ( People v. Shapiro , 50 N.Y.2d 747, 761, 431 N.Y.S.2d 422, 409 N.E.2d 897 [1980] ; see CPL 470.05[2] ; People v. Allen , 88 N.Y.2d 831, 833, 644 N.Y.S.2d 478, 666 N.E.2d 1351 [1996] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Defendant correctly concedes that his contention that the jury improperly engaged in public deliberation in violation of CPL 310.10 is also unpreserved for our review. That alleged error is not one that falls within the "very narrow category of so-called ‘mode of proceedings’ errors" that are reviewable even in the absence of a timely objection ( People v. Agramonte , 87 N.Y.2d 765, 770, 642 N.Y.S.2d 594, 665 N.E.2d 164 [1996] ; see People v. Peck , 96 A.D.3d 1468, 1469, 946 N.Y.S.2d 334 [4th Dept. 2012], lv denied 21 N.Y.3d 1008, 971 N.Y.S.2d 259, 993 N.E.2d 1282 [2013] ), and 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] ).
Defendant further failed to preserve for our review his contention that the evidence is legally insufficient to support the jury's findings that the victim suffered a serious physical injury as defined by the Penal Law or that defendant intended to inflict such injury ( Penal Law §§ 10.00[10] ; 120.10[1] ) and, in any event, that contention is without merit. Additionally, viewing the evidence in light of the elements of assault in the first 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 conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
We reject defendant's contention that he was denied effective assistance of counsel. Defendant failed to establish "the absence of strategic or other legitimate explanations" for counsel's decision to consent to an instruction that the jury should not draw an unfavorable inference from the fact that defendant was in custody ( People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; see People v. Kurkowski , 117 A.D.3d 1442, 1443–1444, 984 N.Y.S.2d 761 [4th Dept. 2014] ). With respect to defendant's additional allegations regarding counsel's performance, an attorney's "failure to ‘make a motion or argument that has little or no chance of success’ " does not amount to ineffective assistance ( People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). Finally, the sentence is not unduly harsh or severe.