People v. Lewis

Nov 13, 2009
Versions:67 A.D.3d 1396
888 N.Y.S.2d 814

Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered October 12, 2005. The judgment convicted defendant, after a nonjury trial, of murder in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: The sole contention of defendant in this appeal from a judgment convicting him following a nonjury trial of murder in the second degree (Penal Law § 125.25 [1]) is that he was denied effective assistance of counsel. We reject that contention (see generally People v Flores, 84 NY2d 184, 186-187 [1994]; People v Baldi, 54 NY2d 137, 147 [1981]). Defense counsel‘s failure to make various motions that had little or no chance of success does not constitute ineffective assistance of counsel (see People v McDuffie, 46 AD3d 1385, 1386 [2007], lv denied 10 NY3d 867 [2008]; People v Dashnaw, 37 AD3d 860, 863 [2007], lv denied 8 NY3d 945 [2007]; People v Johnson, 11 AD3d 979, 979-980 [2004], lv denied 3 NY3d 757 [2004]). In addition, defense counsel‘s failure to object to County Court‘s Sandoval ruling or to seek a compromise ruling did not constitute ineffective assistance of counsel inasmuch as the court in this nonjury trial ” ‘is presumed to have evaluated the evidence [of defendant‘s past criminal conduct] only for the purpose of impeaching . . . defendant‘s credibility and not as evidence of guilt of the crime charged’ ” (People v Maryon, 20 AD3d 911, 913 [2005], lv denied 5 NY3d 854 [2005]).

Contrary to defendant‘s further contention, neither defense counsel‘s failure to object to the prosecutor‘s allegedly improper remarks during summation nor defense counsel‘s limited cross-examination of certain witnesses deprived defendant of effective assistance of counsel, particularly in the context of this nonjury trial (see Maryon, 20 AD3d at 913; see also People v Walker, 50 AD3d 1452, 1453 [2008], lv denied 11 NY3d 795 [2008], denied reconsideration 11 NY3d 931 [2008]). Present—Martoche, J.P., Smith, Peradotto, Green and Pine, JJ.