| People v Henderson |
| 2007 NY Slip Op 08138 [45 AD3d 903] |
| November 1, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ChristopherHenderson, Appellant. |
—[*1] Mary Anne Bukolt-Ryder, Plattsburgh, for respondent.
Kane, J. Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered October 25, 2004, upon a verdict convicting defendant of the crimes of assault in thesecond degree and criminal possession of a weapon in the third degree.
Defendant, who is married to the victim's ex-wife, approached the victim and struck himseveral times with a cane, injuring the victim. A jury did not accept defendant's justificationdefense, instead finding him guilty of assault in the second degree and criminal possession of aweapon in the third degree. Defendant appeals.
Defendant was not deprived of a fair trial. His contention that the People may not havedisclosed Brady and Rosario material is not supported by the record, which doesnot reveal the existence of such material (see Matter of James A., 298 AD2d 240 [2002]).
Defense counsel was not ineffective when he agreed that defendant's prior conviction and itsunderlying facts were admissible. It appears that counsel made a strategic choice to admit thesefacts on defendant's direct testimony—lessening the impact of the conviction, and [*2]highlighting the nonviolent aspect and minimal involvement bydefendant—and counsel's legitimate choice should not be second-guessed (see People v Turner, 37 AD3d874, 876 [2007], lv denied 8 NY3d 991 [2007]). In any event, the prior conviction ofwelfare fraud was admissible on cross-examination of defendant as it was relevant to defendant'scredibility (see People v Mangan, 258 AD2d 819, 821 [1999], lv denied 93 NY2d927 [1999]).
Counsel's choice to not challenge two jurors was not ineffective assistance, but a tacticaldecision which we will not invade. The court must inquire further if a juror's statements castserious doubt on the ability to remain fair and impartial (see People v Bludson, 97 NY2d644, 645-646 [2001]; People vFaulkner, 36 AD3d 1071, 1073 [2007]). Here, in contrast to a juror's earlier statementthat he might place more confidence in testimony from a police officer because the juror workedas a US Border Patrol agent, during defense counsel's voir dire that juror stated, "I'd like to thinkI'd be totally a hundred percent impartial" (see People v Turner, 37 AD3d at 876). Basedon this statement clarifying his views and his ability to adhere to the law, no further court inquirywas required. That juror was also divorced, which may have played a role in counsel's selectionof him considering the relationship of the victim to defendant. No indication of bias toward theprosecution was revealed by another juror merely because a police officer witness was a friend ofthe juror's sister in college, especially considering that the police officer who testified did notobserve the assault. As counsel appeared to have strategic reasons for declining to challengethese two jurors and for permitting questions regarding defendant's prior conviction, defendantreceived the effective assistance of counsel (see People v Ryan, 90 NY2d 822, 823-824[1997]; People v Turner, 37 AD3d at 876).
Crew III, J.P., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the judgment isaffirmed.