Opinion
1455 KA 17–00997
12-22-2017
The PEOPLE of the State of New York, Respondent, v. Brian ZEMAN, Defendant–Appellant.
TULLY RINCKEY, PLLC, ROCHESTER (PETER J. PULLANO OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
TULLY RINCKEY, PLLC, ROCHESTER (PETER J. PULLANO OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, assault in the second degree ( Penal Law § 120.05 [2 ] ), defendant contends that the verdict is against the weight of the evidence with respect to that crime. We reject that contention. Viewing the evidence in light of the elements of the crime as charged to the jury, we conclude that "the People proved beyond a reasonable doubt all elements of the crime [ ] charged" ( People v. Stepney, 93 A.D.3d 1297, 1298, 940 N.Y.S.2d 752 [4th Dept. 2012], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ; see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). In particular, the credible evidence established that defendant caused physical injury to the victim by striking her multiple times with a broom, which constituted a dangerous instrument inasmuch as the circumstances of its use made it readily capable of causing serious physical injury (see§ 10.00[9], [13]; People v. Becker, 298 A.D.2d 986, 986, 748 N.Y.S.2d 299 [4th Dept. 2002], lv denied 99 N.Y.2d 555, 754 N.Y.S.2d 207, 784 N.E.2d 80 [2002] ; People v. Flowers, 178 A.D.2d 682, 682, 577 N.Y.S.2d 674 [3d Dept. 1991], lv denied 79 N.Y.2d 947, 583 N.Y.S.2d 201, 592 N.E.2d 809 [1992] ).
Defendant failed to preserve for our review his contentions that he was denied a fair trial based upon prosecutorial misconduct (see People v. Smith, 129 A.D.3d 1549, 1549–1550, 10 N.Y.S.3d 374 [4th Dept. 2015], lv. denied 26 N.Y.3d 971, 18 N.Y.S.3d 608, 40 N.E.3d 586 [2015] ), that the victim's testimony at trial rendered the indictment duplicitous (see People v. Allen, 24 N.Y.3d 441, 449–450, 999 N.Y.S.2d 350, 24 N.E.3d 586 [2014] ; People v. Garner, 145 A.D.3d 1573, 1574, 43 N.Y.S.3d 838 [4th Dept. 2016], lv denied 29 N.Y.3d 1031, 62 N.Y.S.3d 300, 84 N.E.3d 972 [2017] ), and that he was deprived of a fair trial by improper jury instructions (see People v. Green, 35 A.D.3d 1211, 1212, 825 N.Y.S.2d 891 [4th Dept. 2006], lv denied 8 N.Y.3d 985, 838 N.Y.S.2d 488, 869 N.E.2d 664 [2007] ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Finally, we reject defendant's contention that he was denied effective assistance of counsel inasmuch as he failed to " ‘demonstrate the absence of strategic or other legitimate explanations' for counsel's alleged shortcomings" ( People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). In particular, defendant was not denied effective assistance of counsel by defense counsel's failure to make certain motions or arguments that had "little or no chance of success" ( People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.