| People v Copeland |
| 2007 NY Slip Op 07253 [43 AD3d 1436] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JohnnyCopeland, III, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), renderedSeptember 17, 2004. The judgment convicted defendant, upon a jury verdict, of assault in thesecond degree, criminal possession of a weapon in the second degree (two counts) and criminalpossession of a weapon in the third degree (two counts).
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of onecount of assault in the second degree (Penal Law § 120.05 [2]), and two counts each ofcriminal possession of a weapon in the second degree (former § 265.03 [2]) and criminalpossession of a weapon in the third degree (§ 265.02 [1], [4]). Defendant contends that hewas denied effective assistance of counsel based on defense counsel's failure to request limitinginstructions concerning evidence of defendant's parole status and defense counsel's failure toobject to the prosecutor's improper remarks concerning his parole status on summation. We rejectthat contention (see generally People v Baldi, 54 NY2d 137, 147 [1981]). Theconstitutional right to effective assistance of counsel "does not guarantee a perfect trial, butassures the defendant a fair trial" (People v Flores, 84 NY2d 184, 187 [1994]). Here,defendant failed to meet his burden of demonstrating "the absence of strategic or other legitimateexplanations for [defense] counsel's [alleged] failure[s]" (People v Rivera, 71 NY2d 705,709 [1988]). The evidence of defendant's parole status was necessary in order to "complete thenarrative of the crime[s] charged" (People v Tabora, 139 AD2d 540, 541 [1988], lvdenied 72 NY2d 925 [1988]), and the prosecutor thus was entitled to refer to that evidenceon summation (cf. People v Casey,37 AD3d 1113, 1116-1117 [2007], lv denied 8 NY3d 983 [2007]). Defendant failedto preserve for our review his further contention that the evidence of his constructive possessionof a weapon on November 14, 2003 is legally insufficient to support the conviction of criminalpossession of a weapon in the second degree under count three of the indictment and criminalpossession of a weapon in the third degree under counts four and five (see People v Boodrow, 30 AD3d758, 759 [2006], lv denied 7 NY3d 900 [2006]; see generally People v Gray,86 NY2d 10, 19 [1995]; People v Kleinhans, 236 AD2d 790 [1997], lv denied 89NY2d 1096 [1997]). Finally, the sentence is not unduly harsh or severe. Present—Scudder,P.J., Hurlbutt, Lunn, Fahey and Pine, JJ.