The People of the State of New York, Respondent, v Matthew S. Bahr, Appellant.
Supreme Court, Appellate Division, Third Department, New York
946 NYS2d 675
Egan Jr., J.
Egan Jr., J. Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered February 22, 2011, upon a verdict convicting defendant of the crime of assault in the second degree.
On June 27, 2008, the victim left work at approximately 11:00 p.m. and, upon arriving home and discovering his daughter‘s slumber party in progress, hopped on his Harley Davidson motorcycle and went for a ride—ultimately arriving at Matty B‘s, a bar owned by defendant in the City of Binghamton, Broome County. The victim entered, stood at the bar and ordered a bottle of beer from defendant, the only bartender on duty that night. When the victim ordered a second beer and received what he believed to be insufficient change, he questioned defendant regarding the apparent discrepancy. According to the victim, defendant became defensive and abusive, grabbed
As a result of this incident, defendant was indicted and charged with one count of assault in the second degree. Following a jury trial, defendant was convicted as charged and was sentenced to five years of probation, together with three months of working weekends at the local jail. Defendant now appeals contending, among other things, that he was denied the effective assistance of counsel.
We affirm. To the extent that defendant contends that trial counsel failed to conduct an adequate pretrial investigation to locate potential witnesses, defendant‘s allegations in this regard involve matters outside the record and, as such, are more properly the subject of a
Here, trial counsel engaged in appropriate pretrial motion practice (as evidenced by the transcript of the combined Sandoval and Huntley hearing), made cogent opening and closing statements, advanced a plausible—albeit ultimately unsuccessful—defense, vigorously cross-examined the People‘s witnesses and made appropriate objections—including a motion for a mistrial (see People v Buchanan, 95 AD3d 1433, 1437 [2012]; People v Fulwood, 86 AD3d 809, 811 [2011], lv denied 17 NY3d 952 [2011]). Although defendant faults trial counsel for failing to renew the motion to dismiss at the close of the proof and neglecting to admit into evidence certain unspecified defense exhibits, these asserted errors—viewed in the context of
Nor are we persuaded that County Court erred in redacting a portion of the ambulance report admitted into evidence—specifically, a statement allegedly made by the victim to ambulance personnel regarding the underlying incident. Although the ambulance report itself was admissible under the business records exception to the hearsay rule (see
Finally, we cannot say that County Court erred in denying defendant‘s motion for a mistrial based upon a comment made by the prosecutor during closing argument, wherein she insinuated that defendant closed the bar early on the morning of the incident and—arguably—called into question his motivation for doing so. Defense counsel promptly objected to the comment and moved for a mistrial; County Court denied that motion but sustained the objection and gave an appropriate curative instruction. Although defendant now contends that he should have been allowed to reopen his proof in response to this comment, defendant made no such request at the time and, all things considered, the prosecutor‘s comment was not “so substantially prejudicial as to deprive defendant of a fair trial” (People v Newkirk, 75 AD3d 853, 857 [2010], lv denied 16 NY3d 834 [2011]; see generally People v Stephens, 2 AD3d 888, 890 [2003], lv denied 2 NY3d 746 [2004]; People v Howard, 213 AD2d 903, 904 [1995], lv denied 85 NY2d 974 [1995], 86 NY2d 795, 796 [1995]). Hence, County Court properly denied defendant‘s motion. Defendant‘s remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.