| People v Koki |
| 2010 NY Slip Op 05024 [74 AD3d 987] |
| June 8, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v MarkKoki, Appellant. |
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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.),rendered February 8, 2007, convicting him of murder in the second degree (two counts), robberyin the first degree, and criminal possession of a weapon in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was charged with murder in the second degree and other crimes in connectionwith an incident during which he killed a friend. At trial, the defendant pursued the affirmativedefense that he was not criminally responsible by reason of mental disease or defect (seePenal Law § 40.15), but the jury rejected that affirmative defense and convicted him oftwo counts of murder in the second degree, robbery in the first degree, and criminal possessionof a weapon in the second degree. On appeal, the defendant argues that the Supreme Court erredin "refusing" to instruct the jury on the affirmative defense to murder in the second degree of"extreme emotional disturbance" (Penal Law § 125.25 [1] [a]; § 125.20 [2]; seePeople v Roche, 98 NY2d 70, 75-76 [2002]). He also argues that he was deprived of hisright to the effective assistance of counsel (see People v Baldi, 54 NY2d 137 [1981];Strickland v Washington, 466 US 668 [1984]).
The defendant's claim with respect to the Supreme Court's charge is unpreserved forappellate review because the defendant did not request submission of that charge (seeCPL 470.05 [2]; People v Ferraro,49 AD3d 550, 552 [2008]; People v Zarif, 290 AD2d 401, 401-402 [2002]).
The defendant was not deprived of his right to the effective assistance of counsel. UnderNew York's "flexible standard" of evaluating claims of ineffective representation (People vBenevento, 91 NY2d 708, 712 [1998]), where "the evidence, the law, and the circumstancesof a particular case, viewed in totality and as of the time of the representation, reveal that theattorney provided meaningful representation," counsel's performance will not be foundineffective (People v Baldi, 54 NY2d at 147). "Isolated errors in counsel's representationgenerally will not rise to the level of ineffectiveness, unless the error is so serious that defendantdid not receive a fair trial" (People v Henry, 95 NY2d 563, 565-566 [2000] [internalquotation marks omitted]; [*2]see People v Flores, 84NY2d 184, 188-189 [1994]). Moreover, a defendant pressing an ineffectiveness claim based onparticular errors in counsel's performance must "demonstrate the absence of strategic or otherlegitimate explanations" for those deficiencies (People v Rivera, 71 NY2d 705, 709[1988]; see People v Taylor, 1NY3d 174, 177 [2003]). Here, although the defendant asserts isolated flaws in trial counsel'sperformance, he has failed to demonstrate that counsel lacked legitimate strategic or tacticalreasons for the challenged actions (see People v Baldi, 54 NY2d at 151; People v Alexis, 65 AD3d 1160,1161 [2009]). In any event, he has identified no defect so serious, either in isolation or whenviewed in light of the totality of the representation, that would establish that he was deniedmeaningful representation (see People vAlexis, 65 AD3d 1160, 1161 [2009]), or was otherwise deprived of his right to effectiveassistance of counsel (see Strickland v Washington, 466 US 668 [1984]). Fisher, J.P.,Covello, Hall and Sgroi, JJ., concur.