People v. Koki

Jun 8, 2010
Reporters:
,

Ordered that the judgment is affirmed.

The defendant was charged with murder in the second degree and other crimes in connection with an incident during which he killed a friend. At trial, the defendant pursued the affirmative defense that he was not criminally responsible by reason of mental disease or defect (see Penal Law § 40.15), but the jury rejected that affirmative defense and convicted him of two counts of murder in the second degree, robbery in the first degree, and criminal possession of a weapon in the second degree. On appeal, the defendant argues that the Supreme Court erred in ‍‌​​‌​‌​‌​‌​‌​​‌​​‌‌‌‌​‌​​‌​‌​‌​‌​​‌​​‌‌​​‌‌‌​​‌‌​‌‌‌​‌‌‌​​‌​​​​​​‌‌‌​​​​​‌‌​‌‌‌​​‌​​​‌​‌‌​​‌​​​​‍“refusing” to instruct the jury on the affirmative defense to murder in the second degree of “extreme emotional disturbance” (Penal Law § 125.25 [1] [a]; § 125.20 [2]; see People v Roche, 98 NY2d 70, 75-76 [2002]). He also argues that he was deprived of his right to the effective assistance of counsel (see People v Baldi, 54 NY2d 137 [1981]; Strickland v Washington, 466 US 668 [1984]).

The defendant‘s claim with respect to the Supreme Court‘s charge is unpreserved for appellate review because the defendant did not request submission of that charge (see CPL 470.05 [2]; People v Ferraro, 49 AD3d 550, 552 [2008]; People v Zarif, 290 AD2d 401, 401-402 [2002]).

The defendant was not deprived of ‍‌​​‌​‌​‌​‌​‌​​‌​​‌‌‌‌​‌​​‌​‌​‌​‌​​‌​​‌‌​​‌‌‌​​‌‌​‌‌‌​‌‌‌​​‌​​​​​​‌‌‌​​​​​‌‌​‌‌‌​​‌​​​‌​‌‌​​‌​​​​‍his right to the effective assistance of counsel. Under New York‘s “flexible standard” of evaluating claims of ineffective representation (People v Benevento, 91 NY2d 708, 712 [1998]), where “the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation,” counsel‘s performance will not be found ineffective (People v Baldi, 54 NY2d at 147). “Isolated errors in counsel‘s representation generally will not rise to the level of ineffectiveness, unless the error is so serious that defendant did not receive a fair trial” (People v Henry, 95 NY2d 563, 565-566 [2000] [internal quotation ‍‌​​‌​‌​‌​‌​‌​​‌​​‌‌‌‌​‌​​‌​‌​‌​‌​​‌​​‌‌​​‌‌‌​​‌‌​‌‌‌​‌‌‌​​‌​​​​​​‌‌‌​​​​​‌‌​‌‌‌​​‌​​​‌​‌‌​​‌​​​​‍marks omitted]; see People v Flores, 84 NY2d 184, 188-189 [1994]). Moreover, a defendant pressing an ineffectiveness claim based on particular errors in counsel‘s performance must “demonstrate the absence of strategic or other legitimate explanations” for those deficiencies (People v Rivera, 71 NY2d 705, 709 [1988]; see People v Taylor, 1 NY3d 174, 177 [2003]). Here, although the defendant asserts isolated flaws in trial counsel‘s performance, he has failed to demonstrate that counsel lacked legitimate strategic or tactical reasons for the challenged actions (see People v Baldi, 54 NY2d at 151; People v Alexis, 65 AD3d 1160, 1161 [2009]). In any event, he has identified no defect so serious, either in isolation ‍‌​​‌​‌​‌​‌​‌​​‌​​‌‌‌‌​‌​​‌​‌​‌​‌​​‌​​‌‌​​‌‌‌​​‌‌​‌‌‌​‌‌‌​​‌​​​​​​‌‌‌​​​​​‌‌​‌‌‌​​‌​​​‌​‌‌​​‌​​​​‍or when viewed in light of the totality of the representation, that would establish that he was denied meaningful representation (see People v Alexis, 65 AD3d 1160, 1161 [2009]), or was otherwise deprived of his right to effective assistance of counsel (see Strickland v Washington, 466 US 668 [1984]). Fisher, J.P., Covello, Hall and Sgroi, JJ., concur.