| People v Douglas |
| 2009 NY Slip Op 02127 [60 AD3d 1377] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v GolddeDouglas, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Elizabeth Clifford of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedFebruary 18, 2005. The judgment convicted defendant, upon a jury verdict, of attempted murderin the second degree and assault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial ofattempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]) andassault in the first degree (§ 120.10 [1]). Defendant failed to preserve for our review hiscontention that he was deprived of a fair trial by prosecutorial misconduct on summation (seePeople v Smith, 32 AD3d 1291, 1292 [2006], lv denied 8 NY3d 849 [2007]) and, inany event, that contention is without merit. The majority of the prosecutor's comments onsummation to which defendant objects on appeal were within the " 'broad bounds of rhetoricalcomment permissible in closing argument' " (People v Williams, 28 AD3d 1059, 1061[2006], affd 8 NY3d 854 [2007], quoting People v Galloway, 54 NY2d 396, 399[1981]), and those comments that were arguably beyond those bounds were not so egregious asto deprive defendant of a fair trial (see People v Rivera, 281 AD2d 927, 928 [2001],lv denied 96 NY2d 906 [2001]; People v Walker, 234 AD2d 962, 963 [1996],lv denied 89 NY2d 1042 [1997]). We further conclude that defendant receivedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]). Thealleged instances of ineffective assistance concerning defense counsel's failure to make variousobjections "are based largely on his hindsight disagreements with defense counsel's trialstrategies, and defendant failed to meet his burden of establishing the absence of any legitimateexplanations for those strategies" (People v Morrison, 48 AD3d 1044, 1045 [2008],lv denied 10 NY3d 867 [2008]; see People v Benevento, 91 NY2d 708, 712-713[1998]). Further, "[t]here can be no denial of effective assistance of . . . counselarising from [defense] counsel's failure to 'make a motion or argument that has little or no chanceof success' " (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz,2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]; see People v Odom,53 AD3d 1084, 1087 [2008], lv denied 11 NY3d 792 [2008]). Finally, although we agreewith defendant that County Court erred in admitting a newspaper article concerning the numberof local homicides, we conclude that the error is harmless (see generally People vCrimmins, 36 NY2d 230, 241-242 [1975]). Present—Hurlbutt, J.P., Martoche, Fahey,Carni and Gorski, JJ.