Opinion
2014-06-20
The PEOPLE of the State of New York, Respondent, v. Labradford SMITH, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Maria MalDonado of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Maria MalDonado of Counsel), for Respondent.
PRESENT: SMITH, J.P., CENTRA, CARNI, WHALEN, and DeJOSEPH, JJ.
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] ). We reject defendant's contention that he received ineffective assistance of counsel. Defense counsel's failure to request a Wade hearing did not constitute ineffective assistance 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' ” ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;see People v. Sebring, 111 A.D.3d 1346, 1346–1347, 974 N.Y.S.2d 722,lv. denied22 N.Y.3d 1159, 984 N.Y.S.2d 643, 7 N.E.3d 1131;People v. Hughes, 148 A.D.2d 1002, 1002, 540 N.Y.S.2d 221,lv. denied74 N.Y.2d 741, 545 N.Y.S.2d 115, 543 N.E.2d 758,reconsideration denied74 N.Y.2d 848, 546 N.Y.S.2d 1013, 546 N.E.2d 196). Defense counsel's failure to object to alleged Molineux evidence and to request a limiting instruction “was a tactical decision” and did not constitute ineffective assistance ( People v. Taylor, 2 A.D.3d 1306, 1308, 769 N.Y.S.2d 797,lv. denied2 N.Y.3d 746, 778 N.Y.S.2d 472, 810 N.E.2d 925). Inasmuch as one of the eyewitnesses knew defendant, defense counsel was not ineffective in failing to call an expert witness to testify about the reliability of eyewitness identifications ( see People v. Faison, 113 A.D.3d 1135, 1136, 977 N.Y.S.2d 862;see also People v. Stanley, 108 A.D.3d 1129, 1130–1131, 970 N.Y.S.2d 136,lv. denied22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555;People v. McDonald, 79 A.D.3d 771, 772, 911 N.Y.S.2d 908,lv. denied16 N.Y.3d 861, 923 N.Y.S.2d 423, 947 N.E.2d 1202). Defense counsel's failure to request a missing witness charge did not constitute ineffective assistance of counsel. There was no indication that the witness would have provided noncumulative testimony favorable to the People ( see People v. Hicks, 110 A.D.3d 1488, 1489, 972 N.Y.S.2d 800,lv. denied22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128;People v. Myers, 87 A.D.3d 826, 828, 928 N.Y.S.2d 407,lv. denied17 N.Y.3d 954, 936 N.Y.S.2d 80, 959 N.E.2d 1029;see generally People v. Savinon, 100 N.Y.2d 192, 197, 761 N.Y.S.2d 144, 791 N.E.2d 401).
Contrary to defendant's contention, the verdict is not against the weight of the evidence. Viewing the evidence in light of the elements of the crime 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), we conclude that “the jury was justified in finding the defendant guilty beyond a reasonable doubt” ( id. at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1). We further conclude that Supreme Court did not abuse its discretion in determining that defendant was ineligible for youthful offender status inasmuch as there were no “mitigating circumstances that bear directly upon the manner in which the crime was committed” (CPL 720.10[3] [i]; see People v. Parker, 67 A.D.3d 1405, 1406, 887 N.Y.S.2d 888,lv. denied15 N.Y.3d 755, 906 N.Y.S.2d 828, 933 N.E.2d 227;see also People v. Pulvino, 115 A.D.3d 1220, 1223, 982 N.Y.S.2d 630). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.