| People v Darden |
| 2008 NY Slip Op 10438 [57 AD3d 1522] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Rashad Darden,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered July 28,2005. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon a jury verdict, of murder in thesecond degree (Penal Law § 125.25 [1]), defendant contends that he was denied effectiveassistance of counsel because defense counsel failed to request that County Court charge the jury onthe use of excessive force as it relates to the defense of justification. We reject that contention. "Therecan be no denial of effective assistance of trial counsel arising from counsel's failure to 'make a motionor argument that has little or no chance of success' " (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287[2004]). Here, we conclude that defense counsel was not ineffective in failing to request a charge on theuse of excessive force as it relates to a justification defense. Although "a court must charge the jury onany claimed defense that is supported by a reasonable view of the evidence which the court must assessin the light most favorable to the defendant" (People v Taylor, 80 NY2d 1, 12 [1992]), herethere is no reasonable view of the evidence supporting such a charge (see People v Lee, 224AD2d 916 [1996], lv denied 88 NY2d 967 [1996]; cf. People v Reeder, 209 AD2d551, 552 [1994], lv denied 85 NY2d 913 [1995]). Defendant contends that the charge waswarranted because there is a reasonable view of the evidence by which the jury could find that,although the first or second gunshot may have caused the victim's death, those gunshots were justifiedby self-defense, and that the third shot, although excessive, nevertheless was justified because it waseither nonfatal or the victim was already dead. That contention is without merit, however, because therewas no evidence that there was a single fatal gunshot. Rather, the medical evidence established that thevictim died as a result of multiple gunshot wounds and that it could not be determined in which order thewounds were sustained. Further, viewing the evidence in the light most favorable to defendant, weconclude that there is no reasonable view of the evidence to permit the jury to find that the victim wasnot alive when the third gunshot was fired (see generally Taylor, 80 NY2d at 12). Finally, thesentence is not unduly harsh or severe. Present—Scudder, P.J., Smith, Centra and Fahey, JJ.