| People v Roberts |
| 2009 NY Slip Op 04771 [63 AD3d 1294] |
| June 11, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DarrenRoberts, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady, for respondent.
Garry, J. Appeal from a judgment of the County Court of Schenectady County (Clark, J.),rendered September 5, 2008, convicting defendant following a nonjury trial of the crime ofcriminal possession of a weapon in the third degree.
In December 2007, defendant allegedly engaged in a physical altercation with anacquaintance at an apartment building in the City of Schenectady, Schenectady County. Abuilding resident called 911 and reported that two men were fighting, one of whom was usingbrass knuckles. Two police officers responded to the call. Upon their arrival, they allegedly sawdefendant leaving the building's porch, where the other man was "slumped over" and bleedingfrom the mouth. Defendant allegedly crossed the street with his hands in his pockets. Theofficers testified that they ordered him to remove his hands from his pockets and that, when hedid so, he was holding a set of what they believed to be brass knuckles.
Defendant was subsequently indicted on one count of criminal possession of a weapon in thethird degree. He waived his right to a jury trial, and the matter was tried before County Court,where defendant was found guilty as charged and sentenced to a prison term of 2 to 4 years.Defendant appeals.
Defendant contends that he received ineffective assistance from the attorney who [*2]represented him at his arraignment.[FN*]To convict defendant of criminal possession of a weapon in the third degree, the People wererequired to establish that he possessed a proscribed weapon—in this case, metalknuckles—and that he had previously been convicted of a crime (see Penal Law§ 265.01 [1]; § 265.02 [1]). In the course of the arraignment, his attorney permittedhim, without objection, to answer County Court's requests for his name, date of birth, and SocialSecurity number. At trial, the People introduced a transcript of these responses as part of theirproof of the second element of the crime. The transcript was used to show that defendant was thesame person named in a certificate of disposition describing a conviction for criminal sale of acontrolled substance in the fifth degree. Defendant contends that his attorney's failure to object toCounty Court's questions constituted ineffective assistance because defendant was allowed toincriminate himself by providing information that was later used to establish an element of thecharged offense.
An attorney's conduct will only rise to the level of ineffective assistance when the attorney'serrors cannot be considered a legitimate strategic choice and are such that, under the totality ofthe circumstances, the attorney failed to provide meaningful representation (see People v Stultz, 2 NY3d 277,279 [2004]; People v Baldi, 54 NY2d 137, 146-147 [1981]). To establish a claim ofineffective assistance, a defendant must show not only that errors were committed by counsel,but that the defendant was actually prejudiced by those errors (see People v Thomson, 46 AD3d939, 940 [2007], lv denied 9 NY3d 1039 [2008]; People v Frascatore, 200AD2d 860, 861 [1994]). Here, no prejudice has been shown. Defendant's prior conviction wasfully established at trial by other evidence, including his own unequivocal admission duringcross-examination that he had previously been convicted of a class D felony.
Further, defendant has not established that his attorney committed an error. The informationrequested during the arraignment was not inherently self-inculpatory. Defendant's pedigreeinformation was obtained by County Court for routine administrative purposes and not as part of"a disguised attempt at investigatory interrogation" (People v Rodney, 85 NY2d 289,294 [1995]). Defendant's privilege against self-incrimination was not implicated and no noticeunder CPL 710.30 was required (see id. at 293; People v Berkowitz, 50 NY2d333, 338 n 1 [1980]). The attorney's decision to permit defendant to provide identifyinginformation under these circumstances did not deprive him of meaningful representation.
Next, defendant contends that his conviction was based on legally insufficient evidence andwas not supported by the weight of the evidence. As a preliminary matter, his motion for a trialorder of dismissal at the close of the People's case adequately alleged "specific deficiencies" inthe evidence to preserve his sufficiency argument for review (People v Hilliard, 49 AD3d 910, 912 [2008], lv denied 10NY3d 959 [2008]; see People vBalram, 47 AD3d 1014, 1015 [2008], lv denied 10 NY3d 859 [2008]; People v Carter, 40 AD3d 1310,1311 [2007], lv denied 9 NY3d 873 [2007]). Turning to the merits of defendant'sargument, viewed in a light favorable to the People, the evidence was legally sufficient to permita rational factfinder to conclude that the elements of the charged offense were proven beyond areasonable doubt (see People v Cabey, 85 [*3]NY2d 417,421 [1995]). Two officers and four other eyewitnesses testified that they saw defendant holdingmetal knuckles or wearing them on his hand, and the certificate of disposition introduced by thePeople indicated that defendant had previously been convicted of a crime. This evidence waslegally sufficient to establish both elements of the crime of criminal possession of a weapon inthe third degree.
Further, viewing the evidence in a neutral light and according appropriate deference toCounty Court's assessments of witness credibility and demeanor, the verdict against defendant isnot against the weight of the evidence (see People v Myles, 58 AD3d 889, 892 [2009];People v Barringer, 54 AD3d442, 443 [2008], lv denied 11 NY3d 830 [2008]). All of the witnesses testified thatthey saw defendant either holding metal knuckles or using them as he fought with the other man.Although defendant testified that the object found in his possession was a belt buckle, no witnesssaw it attached to his belt. Although some details in the testimony were inconsistent, CountyCourt was entitled to credit the witness testimony in concluding that defendant possessed metalknuckles (see People v Barringer, 54 AD3d at 443-444). As to the second element of theoffense, in addition to the People's evidence, defendant admitted that he had been previouslyconvicted of a crime. Therefore, his conviction was not against the weight of the evidence(see People v Bleakley, 69 NY2d 490, 495 [1987]).
Mercure, J.P., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant was represented atarraignment by an attorney assigned by the Public Defender's office. That office subsequentlyasked to be relieved from the representation because of a conflict of interest. Different attorneysrepresented defendant at trial and on appeal.