Summary
stating trial counsel "was not ineffective for failing to call as a witness a detective who participated in the defendant's interrogation" because "the prosecution did not utilize the defendant's statements to the police at trial" and thus, "there was no compelling reason to call the detective as a defense witness"
Summary of this case from Leftenant v. Attorney Gen. of N.Y.Opinion
2016–03843 Ind. No. 624/15
06-26-2019
The PEOPLE, etc., Respondent, v. Sheldon LEFTENANT, Appellant.
Laurette D. Mulry, Riverhead, N.Y. (Felice B. Milani of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Marion Tang of counsel), for respondent.
Laurette D. Mulry, Riverhead, N.Y. (Felice B. Milani of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Marion Tang of counsel), for respondent.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, JOSEPH J. MALTESE, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Suffolk County (John B. Collins, J.), rendered March 28, 2016, convicting him of attempted aggravated murder of a police officer, criminal possession of a weapon in the second degree, and resisting arrest, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by providing that the sentence imposed on the conviction of criminal possession of a weapon in the second degree shall run concurrently with the sentence imposed on the conviction of attempted aggravated murder of a police officer; as so modified, the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, the defendant's contention is without merit. Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish, beyond a reasonable doubt, the defendant's guilt of attempted aggravated murder of a police officer, criminal possession of a weapon in the second degree, and resisting arrest. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe their demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that he was deprived of the effective assistance of trial counsel is without merit. Viewed in totality, the record reveals that counsel provided meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). Indeed, there can be no denial of effective assistance of trial counsel arising from counsel's failure to make a motion that has little or no chance of success. Accordingly, counsel was not ineffective for failing to move to suppress evidence resulting from a traffic stop where, as here, there was no support in the record for such a motion (see People v. Carver, 27 N.Y.3d 418, 421, 33 N.Y.S.3d 857, 53 N.E.3d 734 ).
Furthermore, defense counsel was not ineffective for failing to call as a witness a detective who participated in the defendant's interrogation, or to request a missing witness charge with respect to that detective. Since the prosecution did not utilize the defendant's statements to the police at trial, there was no compelling reason to call the detective as a defense witness, and trial counsel's decision not to do so may be explained as a legitimate strategic choice (see People v. Carver, 27 N.Y.3d at 421, 33 N.Y.S.3d 857, 53 N.E.3d 734 ). Moreover, a missing witness charge is warranted for a party's failure to produce a witness, under its control, where the witness's testimony would have been material and noncumulative of other testimony or evidence. The party seeking the missing witness charge must sustain an initial burden of showing that the opposing party has failed to call a witness who could be expected to have knowledge regarding a material issue in the case and to provide testimony favorable to the opposing party (see People v. Edwards, 14 N.Y.3d 733, 735, 899 N.Y.S.2d 65, 925 N.E.2d 867 ). Here, given the evidence presented by the prosecution, the detective's testimony would not have been material and, at best, would have been cumulative of the testimony of other police witnesses. Accordingly, since a request for a missing witness charge would have had little or no chance of success under the circumstances, defense counsel was not ineffective for failing to make such a request (see People v. Salton, 74 A.D.3d 997, 998, 905 N.Y.S.2d 199 ).
The County Court did not improvidently exercise its discretion in denying the defendant's application for a substitution of counsel, as he failed to make specific factual allegations of serious complaints about his assigned trial counsel (see People v. Porto, 16 N.Y.3d 93, 99–100, 917 N.Y.S.2d 74, 942 N.E.2d 283 ; People v. Davis, 161 A.D.3d 1000, 1002, 77 N.Y.S.3d 513 ) and, in any event, the court conducted an appropriate inquiry and properly determined that the request was not supported by good cause (see People v. Linares, 2 N.Y.3d 507, 510–512, 780 N.Y.S.2d 529, 813 N.E.2d 609 ; People v. Johnson, 116 A.D.3d 883, 883–884, 983 N.Y.S.2d 447 ).
The People correctly concede that the sentence should be modified so that the terms of imprisonment imposed upon the convictions of criminal possession of a weapon in the second degree and attempted aggravated murder of a police officer run concurrently with each other (see Penal Law § 70.25[2] ; People v. Hamilton, 4 N.Y.3d 654, 797 N.Y.S.2d 408, 830 N.E.2d 306 ; People v. Garcia, 287 A.D.2d 466, 730 N.Y.S.2d 884 ). As so modified, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., AUSTIN, MILLER and MALTESE, JJ., concur.