Opinion
2014-08-13
The PEOPLE, etc., respondent, v. Kevin TOWNSEND, appellant.
Lynn W.L. Fahey, New York, N.Y. (William Kastin of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (William Kastin of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Marrus, J.), dated July 11, 2012, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered April 7, 2009, convicting him of murder in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the order is affirmed.
Contrary to the defendant's contention on his motion pursuant to CPL 440.10 to vacate his prior judgment of conviction, he was not deprived of the effective assistance of counsel ( see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674;People v. Caban, 5 N.Y.3d 143, 800 N.Y.S.2d 70, 833 N.E.2d 213). Although his counsel failed to object to the trial court's improper participation in the reading back of testimony requested by the jury ( see People v. Feurtado, 112 A.D.3d 962, 962, 977 N.Y.S.2d 393;People v. Facey, 104 A.D.3d 788, 789, 960 N.Y.S.2d 490;People v. Brockett, 74 A.D.3d 1218, 1221, 904 N.Y.S.2d 172), the court's error was harmless under the circumstances of this case, and counsel's failure to object did not deprive the defendant of a fair trial ( see People v. Caban, 5 N.Y.3d at 155–156, 800 N.Y.S.2d 70, 833 N.E.2d 213;People v. Pedraza, 56 A.D.3d 390, 392, 868 N.Y.S.2d 186). Upon consideration of the entire record, trial counsel provided meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400), and the defendant's motion pursuant to CPL 440.10 was properly denied without a hearing. MASTRO, J.P., RIVERA, BALKIN and MILLER, JJ., concur.