Opinion
197 KA 10-01373
07-28-2023
The PEOPLE of the State of New York, Respondent, v. Ryan J. LANE, Defendant-Appellant.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DONALD M. THOMPSON OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DONALD M. THOMPSON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, MONTOUR, OGDEN, AND GREENWOOD, 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 nonjury verdict, of murder in the second degree ( Penal Law § 125.25 [1] ) and criminal possession of a weapon in the second degree (§ 265.03 [3]). The conviction arose from the shooting death of the victim—i.e., the brother of a man who defendant maintained had murdered two of defendant's friends—during a confrontation outside a store. We affirm.
Defendant contends that he received ineffective assistance of counsel because defense counsel answered in the negative when County Court asked whether she wanted the court to charge itself on the affirmative defense of extreme emotional disturbance (EED), and defense counsel failed to request a charge on justification. We reject that contention.
Initially, we note that neither EED nor justification is a defense to criminal possession of a weapon in the second degree (see People v. Pons , 68 N.Y.2d 264, 267, 508 N.Y.S.2d 403, 501 N.E.2d 11 [1986] ; People v. Pilato , 145 A.D.3d 1593, 1593, 46 N.Y.S.3d 313 [4th Dept. 2016], lv denied 29 N.Y.3d 951, 54 N.Y.S.3d 382, 76 N.E.3d 1085 [2017] ), and thus defense counsel was not ineffective for failing to request that the court charge itself on those defenses with respect to that count (see generally People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ).
Although the affirmative defense of EED is available with respect to the count of murder in the second degree (see Penal Law § 125.25 [1] [a] [i] ), that defense would have required that defendant establish that he "suffered from a mental infirmity not rising to the level of insanity at the time of the homicide, typically manifested by a loss of self-control" ( People v. Roche , 98 N.Y.2d 70, 75, 745 N.Y.S.2d 775, 772 N.E.2d 1133 [2002] ; see People v. Schumaker , 136 A.D.3d 1369, 1372, 25 N.Y.S.3d 487 [4th Dept. 2016], lv denied 27 N.Y.3d 1075, 38 N.Y.S.3d 845, 60 N.E.3d 1211 [2016], reconsideration denied 28 N.Y.3d 974, 43 N.Y.S.3d 261, 66 N.E.3d 7 [2016] ). Here, we conclude that "proof of the objective element [of the defense] is lacking ..., inasmuch as defendant's behavior immediately before and after the killing was inconsistent with the loss of control associated with the affirmative defense" ( People v. Mohamud , 115 A.D.3d 1227, 1228, 982 N.Y.S.2d 267 [4th Dept. 2014], lv denied 23 N.Y.3d 965, 988 N.Y.S.2d 572, 11 N.E.3d 722 [2014] [internal quotation marks omitted]; see Schumaker , 136 A.D.3d at 1372, 25 N.Y.S.3d 487 ). Defense counsel was therefore not ineffective by failing to request that the court charge itself on the EED defense with respect to the second- degree murder count inasmuch as "[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to ‘make a motion or argument that has little or no chance of success’ " ( Caban , 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; see Schumaker , 136 A.D.3d at 1372, 25 N.Y.S.3d 487 ). Similarly, contrary to defendant's assertion, he was not denied effective assistance of counsel based on defense counsel's failure to request a justification charge because there was no reasonable view of the evidence that would have permitted the court to find that defendant's use of deadly physical force was justified (see Penal Law § 35.15 [2] [a] ; 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] ). Moreover, we conclude that defendant has failed "to demonstrate the absence of strategic or other legitimate explanations" for defense counsel's failure to request an EED defense or justification charge ( People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; see People v. Lasher , 163 A.D.3d 1424, 1425, 76 N.Y.S.3d 868 [4th Dept. 2018], lv denied 32 N.Y.3d 1005, 86 N.Y.S.3d 763, 111 N.E.3d 1119 [2018] ; Johnson , 136 A.D.3d at 1339, 25 N.Y.S.3d 474 ).
Next, inasmuch as defendant " ‘failed to object at the time of sentencing, the claim that the court considered improper factors in imposing the sentence is unpreserved for [our] review’ " ( People v. Colome-Rodriguez , 120 A.D.3d 1525, 1525-1526, 992 N.Y.S.2d 652 [4th Dept. 2014], lv denied 25 N.Y.3d 1161, 15 N.Y.S.3d 293, 36 N.E.3d 96 [2015] ; see CPL 470.05 [2] ), and we decline to exercise our power to review that claim as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ; Colome-Rodriguez , 120 A.D.3d at 1526, 992 N.Y.S.2d 652 ).
Defendant also contends that he was denied effective assistance of counsel at sentencing. We reject that contention. Contrary to defendant's assertion, the record establishes that, although a new attorney had only recently taken over the case, he " ‘was sufficiently familiar with the case and defendant's background to provide meaningful representation at sentencing’ and appropriately advocated for defendant at sentencing" ( People v. Seymore , 188 A.D.3d 1767, 1770, 135 N.Y.S.3d 745 [4th Dept. 2020], lv denied 36 N.Y.3d 1100, 144 N.Y.S.3d 126, 167 N.E.3d 1261 [2021] ; see People v. Saladeen , 12 A.D.3d 1179, 1180, 785 N.Y.S.2d 250 [4th Dept. 2004], lv denied 4 N.Y.3d 767, 792 N.Y.S.2d 11, 825 N.E.2d 143 [2005] ). We have reviewed defendant's further assertion regarding the new attorney's other alleged shortcoming, and we conclude that " ‘the evidence, the law, and the circumstances of [this] particular case, viewed in totality and as of the time of the representation, reveal that the [new] attorney provided meaningful representation’ " with respect to sentencing ( People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998], quoting People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ; see People v. Peters , 213 A.D.3d 1359, 1359, 181 N.Y.S.3d 918 [4th Dept. 2023], lv denied 39 N.Y.3d 1143, 188 N.Y.S.3d 461, 209 N.E.3d 1287 [2023] ).
Finally, defendant contends that the sentence should be reduced based on his post-conviction conduct while incarcerated, and he has attached various unsworn letters, memoranda, and reports to his brief in support thereof. We conclude, however, that "[b]ecause the documents in the appendix to defendant's brief are dehors the record and do not come within an exception to the general rule, they may not be considered on appeal" ( People v. Wilson , 227 A.D.2d 994, 994, 643 N.Y.S.2d 444 [4th Dept. 1996] ), and we note that there is no indication that defendant sought to properly include the documents as part of the record on appeal (cf. 22 NYCRR 1250.7 [d] [3]; People v. Chen , 176 A.D.2d 628, 628, 575 N.Y.S.2d 69 [1st Dept. 1991] ). Based on the record before us, we conclude that the sentence is not unduly harsh or severe.