Summary
In Strong, 165 A.D.3d at 1590, 82 N.Y.S.3d 911, the Fourth Department held that the defendant's trial attorney was not ineffective for "failing to raise a justification defense that would have been weak, at best, and which might have undermined [the] stronger defense that counsel did pursue."
Summary of this case from People v. QuilesOpinion
894 KA 15–00618
10-05-2018
The PEOPLE of the State of New York, Respondent, v. Ralph D. STRONG, Jr., Defendant–Appellant.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL, Rochester), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL, Rochester), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by directing that the sentences imposed on counts one and two shall run concurrently with respect to each other, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of, inter alia, two counts of murder in the first degree ( Penal Law § 125.27[1][a] [viii] ; [b] ) and one count of assault in the second degree (§ 120.05[2] ). Contrary to defendant's contention, the conviction of assault in the second degree is supported by legally sufficient evidence (see generally People v. Hernandez , 82 N.Y.2d 309, 311–318, 604 N.Y.S.2d 524, 624 N.E.2d 661 [1993] ; People v. Jones , 289 A.D.2d 163, 163, 735 N.Y.S.2d 108 [1st Dept. 2001], lv denied 97 N.Y.2d 756, 742 N.Y.S.2d 616, 769 N.E.2d 362 [2002] ). Contrary to defendant's further contention, Supreme Court did not err in permitting the People to introduce evidence that he possessed a gun on a prior occasion because such evidence was "inextricably interwoven with the charged crimes, provided necessary background information, and completed the narrative of [a key prosecution] witness[ ]" ( People v. Larkins , 153 A.D.3d 1584, 1587, 62 N.Y.S.3d 648 [4th Dept. 2017], lv denied 30 N.Y.3d 1061, 71 N.Y.S.3d 11, 94 N.E.3d 493 [2017] ).
Viewing defense counsel's representation in totality and as of the time of the representation, we conclude 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 [1981] ). Contrary to defendant's contention, defense counsel " ‘was not ineffective for failing to raise a justification defense that would have been weak, at best, and which might have undermined [the] stronger defense’ " that counsel did pursue ( People v. Perez , 123 A.D.3d 592, 593, 999 N.Y.S.2d 56 [1st Dept. 2014], lv denied 25 N.Y.3d 1169, 15 N.Y.S.3d 301, 36 N.E.3d 104 [2015] ). Defendant's reliance on McCoy v. Louisiana , ––– U.S. ––––, 138 S.Ct. 1500, 200 L.Ed.2d 821 [2018] is misplaced because defense counsel did not concede defendant's guilt on the most serious charges.
As the People correctly concede, the sentences imposed on the convictions of murder in the first degree must run concurrently with each other (see People v. Rosas , 8 N.Y.3d 493, 495, 836 N.Y.S.2d 518, 868 N.E.2d 199 [2007] ). We therefore modify the judgment accordingly. We have considered defendant's remaining contentions and conclude that none warrant any further relief.