| People v Windley |
| 2010 NY Slip Op 01680 [70 AD3d 1060] |
| February 23, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kenneth Windley, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anne C. Feigus, andJill Oziemblewski of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Heffernan,J.), rendered March 21, 2007, convicting him of robbery in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, reversal of the judgment of conviction is notwarranted by the Supreme Court's alleged error in issuing certain jury instructions in response todefense counsel's summation, since the evidence of the defendant's guilt, without reference to thealleged error, was overwhelming, and there is no reasonable possibility that the alleged errormight have contributed to the defendant's conviction. Thus, any error was harmless beyond areasonable doubt (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People vRush, 44 AD3d 799, 800 [2007]; People v Duggins, 1 AD3d 450, 451 [2003],affd 3 NY3d 522 [2004]).
New York applies a "flexible standard" to evaluating claims of ineffective assistance ofcounsel (People v Benevento, 91 NY2d 708, 712 [1998]) so that where "the evidence,the law, and the circumstances of a particular case, viewed in totality and as of the time of therepresentation, reveal that the attorney provided meaningful representation," counsel'sperformance will not be found ineffective (People v Baldi, 54 NY2d 137, 147 [1981])."Isolated errors in counsel's representation generally will not rise to the level of ineffectiveness,unless the error is so serious that defendant did not receive a fair trial" (People v Henry,95 NY2d 563, 565-566 [2000] [internal quotation marks omitted]; see People v Flores,84 NY2d 184, 188-189 [1994], habeas corpus denied sub nom. Flores v Demskie, 11 FSupp 2d 299 [1998], revd 215 F3d 293 [2000], cert denied sub nom. Keane vFlores, 531 US 1029 [2000]). Moreover, a defendant raising an ineffectiveness of counselclaim must " 'demonstrate the absence of strategic or other legitimate explanations for counsel's[supposed] failure[s]' " (People v Taylor, 1 NY3d 174, 177 [2003], quoting People vRivera, 71 NY2d 705, 709 [1988]).
Here, although the defendant identifies isolated flaws in trial counsel's performance, he hasidentified no defects so serious as to demonstrate that he did not receive a fair trial (seegenerally People v Hines, 46 AD3d 912, 913 [2007]; People v Reilly, 128 AD2d649, 650 [1987]; People v [*2]McMillan, 111 AD2d 934,935 [1985]). Likewise, a defendant cannot establish ineffectiveness merely by showing that hisattorney employed "questionable or debatable trial strategies" (People v Sullivan, 153AD2d 223, 227 [1990]) and, in any event, the defendant has failed to demonstrate that counseldid not have legitimate tactical reasons for the tactics he employed (see People v Baldi,54 NY2d at 151; Pareja v City of New York, 49 AD3d 470 [2008]; People vGonzalez, 22 AD3d 597, 598 [2005]; People v Sullivan, 153 AD2d at 228).Moreover, when considered as a whole, trial counsel's performance was effective (see Peoplev Gonzalez, 22 AD3d at 598).
The defendant's remaining contention is unpreserved for appellate review (see People vLane, 7 NY3d 888, 889 [2006]; People v Hickman, 60 AD3d 865, 866 [2009]; CPL470.05 [2]) and, in any event, is without merit (see People v Wise, 46 NY2d 321, 326[1978]; People v Fiedorczyk, 159 AD2d 585, 586 [1990]; see generally People vLane, 7 NY3d at 889-890; People v Aska, 91 NY2d 979, 981 [1998]). Rivera, J.P.,Leventhal, Lott and Austin, JJ., concur.