| People v Babb |
| 2009 NY Slip Op 09241 [68 AD3d 887] |
| December 8, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Marissa Babb, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ruth E. Ross, andMarie John-Drigo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.),rendered July 24, 2006, convicting her of assault in the second degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that she was deprived of the effective assistance of counsel becauseher attorney failed to object to the court's "flight" charge, failed to request a "justification"charge, and failed to object to expert testimony that certain of the victim's wounds were"defensive." We disagree.
It is not error for defense counsel to fail to make futile motions or objections (see People v Caban, 5 NY3d 143,152 [2005]; People v Stultz, 2NY3d 277, 287 [2004]). Here, the court's instructions to the jury regarding flight asevidence of consciousness of guilt were appropriate, as the evidence had "a tendency to establishthe fact sought to be proved—that defendant was aware of guilt" (People vBennett, 79 NY2d 464, 470 [1992]). Furthermore, the jury was instructed about the limitedprobative value of the evidence (see People v Baker, 26 NY2d 169, 174 [1970]).
Similarly, viewing the evidence in a light most favorable to the defendant, there was noreasonable view of the evidence to support the elements of a justification defense (see Peoplev Collins, 290 AD2d 457, 458 [2002]). The defendant was virtually unscathed by the fight inquestion and sought no medical treatment for her injuries, while her victim received over 100stitches and psychotherapy to deal with the scars on her face and body. Furthermore, thedefendant did not rely on the defense of justification at trial. Instead, she argued that she did nothave a blade and did not cut the victim, thus providing a strategic explanation for counsel'sdecision not to raise that defense (seePeople v Dean, 50 AD3d 1052, 1055 [2008]).
Although defense counsel erred in failing to object to the testimony of the People's expertthat some of the expert victim's wounds were defensive (see People v Paschall, 91 AD2d645 [1982]; see also [*2]People v Hicks, 2 NY3d 750, 751 [2004]; cf. People vCollins, 290 AD2d 457, 458 [2002]), viewing the totality of the evidence, the law, and thecircumstances of the case, we conclude that the defendant received meaningful representation(see People v Benevento, 91 NY2d 708, 713 [1998]; People v Bryson, 66 AD3d 916 [2009]). Skelos, J.P., Eng,Leventhal and Chambers, JJ., concur.