| People v Muller |
| 2008 NY Slip Op 09668 [57 AD3d 1113] |
| December 11, 2008 |
| Appellate Division, Third Department |
| mThe People of the State of New York, Respondent, v Otto Muller,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Stephanie E. Hughes, Law Intern), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Schenectady County (Hoye, J.), renderedJune 20, 2007, upon a verdict convicting defendant of the crimes of attempted murder in the seconddegree and assault in the second degree.
During a confrontation concerning various disputes between defendant and his employer, defendantgrabbed a shotgun from his truck and fired it, injuring the employer. At defendant's ensuing trial oncharges of attempted murder in the second degree and assault in the second degree, he testified that thegun had fired accidentally, and that he had taken approximately 16 prescription pills that day, his headwas "ready to explode," he was "numb" and "dizzy," and the hot weather had interacted badly with hismedication. The defense offered no evidence, however, as to the exact type or dosage of themedication, and no medical expert testified on defendant's behalf. County Court denied defendant'srequest for a jury instruction regarding the statutory defense of intoxication (see Penal Law§ 15.25), and the jury found him guilty as charged. He was then sentenced to two concurrentprison terms of five years and an aggregate term of five years of postrelease supervision.
Defendant now appeals, arguing that he was deprived of the effective assistance of counselbecause his trial counsel should have called an expert to establish the type, dosage and effects of themedications that he had taken before he assaulted the victim. We are unpersuaded. [*2]It is well settled that the failure to call a particular witness does notnecessarily amount to ineffective assistance of counsel (see People v Hobot, 84 NY2d 1021,1024 [1995]; People v McCrone, 12AD3d 848, 850 [2004], lv denied 4 NY3d 800 [2005]; People v Franklin, 288AD2d 751, 755-756 [2001], lv denied 97 NY2d 728 [2002]). This is particularly true where,as here, expert testimony was not required to prove the intoxication defense (see People vGaines, 83 NY2d 925, 927 [1994]), and defendant now offers little more than speculativeassertions that an expert's testimony would have supported it (see People v Del Duco, 247AD2d 487, 488 [1998], lv denied 92 NY2d 850 [1998]; People v Ahl, 243 AD2d985, 987 [1997], lv denied 91 NY2d 868 [1997]; People v Skinner, 224 AD2d 916,916 [1996]). Defendant still has not sought to identify the types of medication he was taking or citedany evidence that what he experienced were recognized effects of such medication. In addition, sincehe testified that he normally took 22 pills per day and had done so for several years, it is unclear whatadditional evidence would have persuaded the jury that, on the day in question, he was unusuallyimpaired after taking 16 pills. Further, defendant has not shown the absence of a strategic explanationfor counsel's failure to elicit the exact description and dosage of defendant's medications on his directexamination (see People v Garcia, 75 NY2d 973, 974 [1990]; People v Alston, 298AD2d 702, 703-704 [2002], lv denied 99 NY2d 554 [2002]; People v Ahl, 243AD2d at 987; see generally People v Rivera, 71 NY2d 705, 709 [1988]). Depending on thetype of medications and the jury's familiarity with them, eliciting further details about them could havebelied the claim of intoxication and, at the least, would have given the People the opportunity to presentexpert testimony to the contrary.
In any event, even if counsel's failure to call an expert were a deficiency, it would be an isolatederror that did not undermine the otherwise thorough representation of defendant (see People v Ross, 43 AD3d 567, 570[2007], lv denied 9 NY3d 964 [2007]; People v Singh, 16 AD3d 974, 978 [2005], lv denied 5 NY3d769 [2005]; People v McCrone, 12 AD3d at 850). Counsel made appropriate motions,secured defendant's pretrial release and articulated a cogent theory of the case. Most significantly,defendant's counsel persuaded County Court to impose the minimum sentence, a result which the courtexpressly attributed to counsel's passionate advocacy. Thus, while unsuccessful in obtaining anacquittal, counsel's performance cannot be characterized as anything less than meaningful (seePeople v Satterfield, 66 NY2d 796, 798-800 [1985]; People v Franklin, 288 AD2d at756; People v Ahl, 243 AD2d at 986-988).
Mercure, J.P., Spain, Kane and Stein, JJ., concur. Ordered that the judgment is affirmed.