Opinion
2014-10-3
The PEOPLE of the State of New York, Respondent, v. Kenneth H. SMITH, Defendant–Appellant.
Charles T. Noce, Conflict Defender, Rochester (Kimberly J. Czapranski of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
Charles T. Noce, Conflict Defender, Rochester (Kimberly J. Czapranski of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, and VALENTINO, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05[2] ), defendant contends that County Court erred in refusing to charge assault in the third degree as a lesser included offense. Even assuming, arguendo, that defendant preserved for our review each of the grounds that he now advances on appeal in support of his contention ( see People v. Feldhousen, 103 A.D.3d 1114, 1115, 958 N.Y.S.2d 849, lv. denied21 N.Y.3d 912, 966 N.Y.S.2d 363, 988 N.E.2d 892), we conclude that his contention lacks merit. Although assault in the third degree is a lesser included offense because “it is theoretically impossible to commit assault in the second degree under [Penal Law § 120.05(2) ] without at the same time committing assault in the third degree under [Penal Law § 120.00(1) ]” (People v. Fasano, 107 A.D.2d 1052, 1052, 486 N.Y.S.2d 109), there is no “ ‘reasonable view of the evidence ... that would support a finding that he committed the lesser offense but not the greater’ ” ( People v. Stanford, 87 A.D.3d 1367, 1368, 930 N.Y.S.2d 149, lv. denied18 N.Y.3d 886, 939 N.Y.S.2d 756, 963 N.E.2d 133, quoting People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376; see People v. Roseborough, 118 A.D.3d 1347, 1347, 986 N.Y.S.2d 906).
Contrary to defendant's further contention, he was not denied effective assistance of counsel based on defense counsel's failure to facilitate defendant's testimony before the grand jury. It is well settled that such failure “does not, per se, amount to the denial of effective assistance of counsel” (People v. Simmons, 10 N.Y.3d 946, 949, 862 N.Y.S.2d 852, 893 N.E.2d 130; see People v. Bibbes, 98 A.D.3d 1267, 1270, 951 N.Y.S.2d 607, amended on rearg. 100 A.D.3d 1473, 954 N.Y.S.2d 923, lv. denied20 N.Y.3d 931, 957 N.Y.S.2d 690, 981 N.E.2d 287), and defendant has failed to demonstrate that defense counsel was ineffective based on that single failure ( see Bibbes, 98 A.D.3d at 1270, 951 N.Y.S.2d 607). Defendant failed to establish that he was prejudiced by defense counsel's failure; he has not demonstrated “what testimony he would have offered or what evidence he would have sought to admit that might lead one to conclude that having heard it, the grand jury would have arrived at a different decision” (People v. Sutton, 43 A.D.3d 133, 136, 839 N.Y.S.2d 746, affd. sub nom. Simmons, 10 N.Y.3d at 947 n. 1, 862 N.Y.S.2d 852, 893 N.E.2d 130) and, notably, he did not testify at trial ( see Bibbes, 98 A.D.3d at 1270, 951 N.Y.S.2d 607; Sutton, 43 A.D.3d at 136, 839 N.Y.S.2d 746). We conclude on the record before us that defendant received meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Finally, to the extent that defendant alleges that his right to counsel was violated when he was arraigned on the felony complaint, we conclude that any “such error was cured upon the return of the indictment” (People v. Winch, 50 A.D.2d 948, 948, 376 N.Y.S.2d 21). “It is well settled that the finding of an indictment supersedes any prior proceedings in a local criminal court” ( id.).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.