Opinion
719 KA 16-01741
09-30-2022
The PEOPLE of the State of New York, Respondent, v. Bryon K. JOHNSON, Defendant-Appellant.
JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR RESPONDENT.
JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, 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 criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). Contrary to defendant's contention, defense counsel was not ineffective for asking law enforcement witnesses whether and how each of them was familiar with defendant, even though that line of questioning alerted the jury to the fact that defendant had prior contacts with law enforcement. It is well settled that a claim of ineffective assistance of counsel requires proof of "less than meaningful representation; a simple disagreement with strategies ... [or] tactics ..., weighed long after the trial, does not suffice" ( People v. Flores , 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19 [1994] ; see People v. Singleton , 203 A.D.3d 1671, 1672, 164 N.Y.S.3d 757 [4th Dept. 2022], lv denied 38 N.Y.3d 1074, 171 N.Y.S.3d 446, 191 N.E.3d 398 [2022] ). The defendant must " ‘demonstrate the absence of strategic or other legitimate explanations’ for counsel's alleged shortcomings" ( People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; see also People v. Anderson , 159 A.D.3d 1592, 1594, 72 N.Y.S.3d 741 [4th Dept. 2018], lv denied 31 N.Y.3d 1077, 79 N.Y.S.3d 99, 103 N.E.3d 1246 [2018], reconsideration denied 32 N.Y.3d 934, 84 N.Y.S.3d 861, 109 N.E.3d 1161 [2018] ).
Here, defense counsel's "strategy was to suggest that the police had improper motives against ... defendant because of their knowledge of his prior [law enforcement contacts], and had manufactured the evidence against him" ( People v. Mercedes , 182 A.D.2d 778, 779, 582 N.Y.S.2d 773 [2d Dept. 1992], lv denied 80 N.Y.2d 835, 587 N.Y.S.2d 919, 600 N.E.2d 646 [1992] ). Although defense counsel thus elicited "damaging testimony" during cross-examination of the People's law enforcement witnesses, there was "a discernible strategy in the questions posed by defense counsel" ( People v. Yelle , 303 A.D.2d 1043, 1044, 756 N.Y.S.2d 692 [4th Dept. 2003], lv denied 100 N.Y.2d 626, 767 N.Y.S.2d 410, 799 N.E.2d 633 [2003] ; see also People v. Harriger , 199 A.D.3d 1482, 1482-1483, 154 N.Y.S.3d 608 [4th Dept. 2021] ). We therefore conclude that defendant has failed to demonstrate the absence of a legitimate explanation for defense counsel's alleged shortcomings (see generally People v. Burton , 191 A.D.3d 1311, 1314-1315, 140 N.Y.S.3d 640 [4th Dept. 2021], lv denied 36 N.Y.3d 1095, 144 N.Y.S.3d 139, 167 N.E.3d 1274 [2021] ).