Opinion
03-02-2017
The PEOPLE of the State of New York, Respondent, v. Andre T. PERRY, Appellant.
Donna C. Chin, Ithaca, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Jordan Yorke of counsel), for respondent.
Donna C. Chin, Ithaca, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Jordan Yorke of counsel), for respondent.
Before: GARRY, J.P., EGAN JR., DEVINE, CLARK and AARONS, JJ.
CLARK, J.Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered June 23, 2014, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the fifth degree and falsely reporting an incident in the third degree.
On June 23, 2013, defendant was arrested for falsely reporting an incident and, during a search incident to his arrest, was found to be in possession of cocaine. Defendant was thereafter indicted on charges of criminal possession of a controlled substance in the fifth degree and falsely reporting an incident in the third degree. Following a jury trial, at which defendant testified, defendant was found guilty as charged and sentenced to an aggregate prison term of three years. Defendant now appeals, solely arguing that he received the ineffective assistance of counsel.
A defendant's right to the effective assistance of counsel is guaranteed by both the U.S. and NY Constitutions (see U.S. Const. 6th Amend; NY Const., art. I, § 6 ). To succeed on a claim of ineffective assistance of counsel under the U.S. Constitution, a defendant must demonstrate that the performance of his or her trial counsel "fell below an objective standard of reasonableness ... under prevailing professional norms" and that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ; see People v. Harris, 26 N.Y.3d 321, 328, 22 N.Y.S.3d 393, 43 N.E.3d 750 [2015] ; People v. Hernandez, 22 N.Y.3d 972, 974–975, 978 N.Y.S.2d 711, 1 N.E.3d 785 [2013], cert. denied ––– U.S. ––––, 134 S.Ct. 1900, 188 L.Ed.2d 930 [2014] ). By comparison, to prevail on a claim of ineffective assistance of counsel under the NY Constitution, a defendant must establish that he or she was not provided meaningful representation and that there is an "absence of strategic or other legitimate explanations" for counsel's allegedly deficient performance (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ). If "the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance" (People v. Benevento, 91 N.Y.2d at 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; see People v. Berroa, 99 N.Y.2d 134, 138, 753 N.Y.S.2d 12, 782 N.E.2d 1148 [2002] ).
Here, with respect to the charge of falsely reporting an incident, the People sought to prove that defendant, while acting in concert with another person, gratuitously reported to the arresting police officer that he had been a passenger in a vehicle driven by his purported accomplice and that the vehicle had been struck in a hit-and-run accident. To that end, the People relied, in large part, on hearsay statements made by defendant's purported accomplice to the arresting officer. While defendant did not challenge the admissibility of these hearsay statements, as one might expect, it appears that his defense strategy was to attribute the false report solely to his purported accomplice and to deny that he participated or aided in any way. Defense counsel's opening and closing statements, as well as his questions during cross-examinations and direct examinations, furthered this apparent strategy. As to defendant's defense of the possession charge, made more difficult by the drugs having been found on his person, defendant appeared to have employed a strategy of contesting the credibility of the arresting officer so as to create reasonable doubt (see People v. Johnson, 303 A.D.2d 830, 835, 758 N.Y.S.2d 687 [2003], lvs. denied 99 N.Y.2d 655, 760 N.Y.S.2d 120, 790 N.E.2d 294 [2003], 100 N.Y.2d 583, 764 N.Y.S.2d 393, 796 N.E.2d 485 [2003] ). However, defendant took the stand and, although he countered portions of the arresting officer's account of events, he ultimately admitted to possessing the drugs. Thus, while the strategy advanced by defense counsel may not have been the best available, we cannot say that it was unreasonable in light of the evidence and circumstances or completely devoid of merit (see People v. Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834 [1985] ; People v. Baldi, 54 N.Y.2d 137, 151–152, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ; People v. Manchester, 123 A.D.3d 1285, 1289, 999 N.Y.S.2d 567 [2014], lv. denied 26 N.Y.3d 931, 17 N.Y.S.3d 94, 38 N.E.3d 840 [2015] ). As often recognized, "counsel's efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective" (People v. Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; accord People v. Thomas, 105 A.D.3d 1068, 1071, 962 N.Y.S.2d 756 [2013], lv. denied 21 N.Y.3d 1010, 971 N.Y.S.2d 262, 993 N.E.2d 1286 [2013] ; see People v. Rotger, 129 A.D.3d 1330, 1331, 11 N.Y.S.3d 734 [2015], lvs. denied 26 N.Y.3d 1011, 20 N.Y.S.3d 551, 42 N.E.3d 221 [2015], 27 N.Y.3d 1005, 38 N.Y.S.3d 114, 59 N.E.3d 1226 [2016] ).
The record does not reveal the circumstances under which defendant decided to testify or the circumstances that prompted defense counsel to state on the record, outside of the presence of the jury, that defendant was not "happy" with him. Issues that are outside the record must be raised in a CPL article 440 motion, rather than on direct appeal (see
The record reveals that defense counsel engaged in appropriate pretrial motion practice, sought discovery materials from the District Attorney's office, made coherent opening and closing statements aimed at furthering a particular defense strategy and contested the credibility of the People's witnesses during cross-examinations. Despite the fact that defense counsel did not make a single objection at trial, seek a curative instruction in response to County Court's statements regarding a defense witness or request any particular jury charge, we find that defense counsel's representation, viewed in its totality, meets the threshold of meaningful (see People v. Baldi, 54 N.Y.2d at 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ; People v. Ryan, 46 A.D.3d 1125, 1126–1127, 847 N.Y.S.2d 726 [2007], lv. denied 10 N.Y.3d 939, 862 N.Y.S.2d 346, 892 N.E.2d 412 [2008] ). Accordingly, defendant's claims of ineffective assistance of counsel fail under both the NY and U.S. Constitutions (see generally People v. Benevento, 91 N.Y.2d at 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; Strickland v. Washington, 466 U.S. at 687–688, 104 S.Ct. 2052 ).
ORDERED that the judgment is affirmed.
GARRY, J.P., EGAN JR., DEVINE and AARONS, JJ., concur.
People v. Brown, 45 N.Y.2d 852, 853–854, 410 N.Y.S.2d 287, 382 N.E.2d 1149 [1978] ; People v. Surowka, 103 A.D.3d 985, 986, 962 N.Y.S.2d 377 [2013] ).