| People v Bahr |
| 2012 NY Slip Op 04793 [96 AD3d 1165] |
| June 14, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Matthew S.Bahr, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
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 thesecond degree.
On June 27, 2008, the victim left work at approximately 11:00 p.m. and, upon arriving homeand discovering his daughter's slumber party in progress, hopped on his Harley Davidsonmotorcycle and went for a ride—ultimately arriving at Matty B's, a bar owned bydefendant in the City of Binghamton, Broome County. The victim entered, stood at the bar andordered a bottle of beer from defendant, the only bartender on duty that night. When the victimordered a second beer and received what he believed to be insufficient change, he questioneddefendant regarding the apparent discrepancy. According to the victim, defendant becamedefensive and abusive, grabbed the bottle of beer from the victim's hand and struck the victimabove his left eye. Briefly stunned, the victim—after observing defendant "barrelingaround [the] bar" and coming toward him—fled the bar, ran down the street and called911. The victim thereafter was brought to a local hospital, where he received stitches for thelaceration to his forehead.
As a result of this incident, defendant was indicted and charged with one count of assault inthe second degree. Following a jury trial, defendant was convicted as charged and was sentencedto 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 [*2]assistance of counsel.
We affirm. To the extent that defendant contends that trial counsel failed to conduct anadequate pretrial investigation to locate potential witnesses, defendant's allegations in this regardinvolve matters outside the record and, as such, are more properly the subject of a CPL article440 motion (see People v Bonelli,41 AD3d 972, 973 [2007], lv denied 9 NY3d 921 [2007]).[FN*]As to the balance of defendant's claim, we find it to be lacking in merit. "[S]o long as theevidence, the law, and the circumstances of a particular case, viewed in totality and as of the timeof the representation, reveal that the attorney provided meaningful representation" (People v Muriel, 75 AD3d 908,911 [2010], lv denied 15 NY3d 922 [2010] [internal quotation marks and citationsomitted]; see People v Young, 86AD3d 796, 799 [2011], lv denied 17 NY3d 905 [2011]), the defendant will bedeemed to have received the effective assistance of counsel. Here, trial counsel engaged inappropriate pretrial motion practice (as evidenced by the transcript of the combinedSandoval and Huntley hearing), made cogent opening and closing statements,advanced a plausible—albeit ultimately unsuccessful—defense, vigorouslycross-examined the People's witnesses and made appropriate objections—including amotion for a mistrial (see People vBuchanan, 95 AD3d 1433, 1437 [2012]; People v Fulwood, 86 AD3d 809, 811 [2011], lv denied 17NY3d 952 [2011]). Although defendant faults trial counsel for failing to renew the motion todismiss at the close of the proof and neglecting to admit into evidence certain unspecifieddefense exhibits, these asserted errors—viewed in the context of counsel's overallrepresentation—do not rise to the level of ineffective assistance of counsel. Notably,"[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure tomake a motion or argument that has little or no chance of success" (People v Caban, 5 NY3d 143, 152[2005] [internal quotation marks and citation omitted]).
Nor are we persuaded that County Court erred in redacting a portion of the ambulance reportadmitted into evidence—specifically, a statement allegedly made by the victim toambulance personnel regarding the underlying incident. Although the ambulance report itself wasadmissible under the business records exception to the hearsay rule (see CPLR 4518 [a];CPL 60.10; People v Ortega, 15NY3d 610, 617 [2010]), the hearsay statement contained therein and allegedly made by thevictim—detailing his actions after he was struck with the beer bottle—did not"relate to diagnosis, prognosis or treatment" (People v Ortega, 15 NY3d at 617 [internalquotation marks and citations omitted]; see People v Wright, 81 AD3d 1161, 1164 [2011], lvdenied 17 NY3d 803 [2011]). Nor was the subject statement "helpful to an understanding ofthe medical . . . aspect[ ]" of the victim's injury (People v Ortega, 15 NY3dat 617 [internal quotation marks and citations omitted]) or otherwise admissible as an exceptionto the hearsay rule. Accordingly, County Court properly redacted such statement from the reportin question.
Finally, we cannot say that County Court erred in denying defendant's motion for a mistrialbased upon a comment made by the prosecutor during closing argument, wherein she insinuatedthat defendant closed the bar early on the morning of the incidentand—arguably—[*3]called into question hismotivation for doing so. Defense counsel promptly objected to the comment and moved for amistrial; County Court denied that motion but sustained the objection and gave an appropriatecurative instruction. Although defendant now contends that he should have been allowed toreopen his proof in response to this comment, defendant made no such request at the time and, allthings considered, the prosecutor's comment was not "so substantially prejudicial as to deprivedefendant of a fair trial" (People vNewkirk, 75 AD3d 853, 857 [2010], lv denied 16 NY3d 834 [2011]; see generally People v Stephens, 2AD3d 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, tothe extent not specifically addressed, have been examined and found to be lacking in merit.
Rose, J.P., Malone Jr., Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Although defendant's CPL330.30 motion to set aside the verdict, which is included in the record on appeal, admittedlyspeaks to the extent and nature of the underlying investigation, the record nonetheless is notsufficiently developed to permit resolution of this aspect of defendant's ineffective assistance ofcounsel claim.