| People v Blanchard |
| 2009 NY Slip Op 04769 [63 AD3d 1291] |
| June 11, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Keith R.Blanchard, Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland (Karen L. Howe of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Cortland County (Campbell,J.), rendered November 30, 2006, upon a verdict convicting defendant of the crime of burglary inthe second degree.
On the evening of May 6, 2005, defendant and seven other men went to a particular CortlandCounty residence in search of the homeowner's son. The homeowner indicated that his son didnot live there anymore and a scuffle broke out. The homeowner, however, was able to retreatback into his house. The front door was then smashed open with a wooden maul and thehomeowner was assaulted inside by numerous members of this gang. For his role in the incident,defendant was indicted on one count of burglary in the second degree and found guilty ascharged following a jury trial. He was sentenced, as a second felony offender, to six years inprison and five years of postrelease supervision. On appeal, he argues that he receivedineffective assistance of counsel and that his sentence was harsh and excessive. Unpersuadedwith both claims, we affirm.
Defendant argues that numerous errors of his trial counsel, when considered cumulatively,deprived him of effective representation. Our review of the record reveals that trial counsel madeappropriate pretrial motions, properly challenged the testimony of witnesses duringcross-examination and pursued a cogent defense strategy throughout the case, which includedthe [*2]presentation of expert evidence in an attempt todemonstrate that defendant was incapable of forming the requisite intent to commit the chargedcrime because of his drug and alcohol intake prior to it.
Moreover, certain of the alleged errors are legally unsupportable, including the claims thattrial counsel erred in failing to object to the People's opening statement and erred in failing toobject "when [defendant's written statement to police] was offered into evidence." The facts setforth by the prosecutor during her opening statement sufficiently apprised the jury of theprospective evidence to be offered against defendant to establish the crime of burglary in thesecond degree (see People v Kurtz, 51 NY2d 380, 384 [1980], cert denied 451US 911 [1981]); thus, any objection to the opening statement or a motion to dismiss theindictment would have been baseless (see generally People v Caban, 5 NY3d 143, 152 [2005]). Withrespect to defendant's written statement to police, trial counsel did in fact move to suppress it butthe motion was denied following a Huntley hearing. We find no error in opting not tovoice a renewed objection, which clearly would have been denied (see People v Caban, 5NY3d at 152), in the presence of the jury. Moreover, the contents of his statement actuallypromoted the defense theory of the case that defendant, under the influence of many differentdrugs at the time of the crime, did not remember much of what occurred and did not have therequisite intent to commit it.
As to other alleged errors, including the failure to request that criminal trespass be chargedas a lesser included offense, defendant has failed to demonstrate the absence of a strategic orother legitimate explanation for same (see People v Rivera, 71 NY2d 705, 709 [1988]).Consequently, on this record and viewing the law and the totality of the circumstances, we findthat defendant received meaningful representation (see People v Benevento, 91 NY2d708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).
Next, given defendant's failure to take responsibility for his actions and lengthy criminalhistory, which includes eight convictions in 10 years and theft-related crimes, we find neither anabuse of discretion nor the existence of extraordinary circumstances warranting a reduction ofhis sentence, which was well below the maximum, in the interest of justice (see e.g. People v Barringer, 54 AD3d442, 444 [2008], lv denied 11 NY3d 830 [2008]; People v Carter, 40 AD3d 1211, 1213 [2007], lv denied 9NY3d 864 [2007]).
Mercure, J.P., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.