| People v Davis |
| 2010 NY Slip Op 07989 [78 AD3d 435] |
| November 9, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v MarkDavis, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Jennifer Marinaccio of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (John A. Barone, J.), rendered on or about May 26,2005, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a termof 10 years, unanimously modified, on the law, to the extent of vacating the imposition of a DNAdatabank fee, and otherwise affirmed. Order, same court (Michael R. Sonberg, J.), entered on or aboutSeptember 30, 2009, which denied defendant's CPL 440.10 motion to vacate the judgment,unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence(see People v Danielson, 9 NY3d342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerningidentification and credibility, including its evaluation of the differences between the victim's descriptionof his assailant's hairstyle and facial hair and other evidence bearing on defendant's possible appearancearound the time of the crime, including the photo taken at his arrest six months afterwards.
Defendant received effective assistance of counsel under the state and federal standards (seePeople v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington,466 US 668 [1984]). The CPL 440.10 motion court conducted a thorough evidentiary hearing on thisissue (see 25 Misc 3d 1207[A], 2009 NY Slip Op 51994[U] [2009]), and the recordsupports its detailed findings of fact, including credibility determinations, and its conclusions of law. Tothe extent that trial counsel may have erred in opening the door to the admission of a certain photographor photographs depicting defendant's hairstyle on occasions prior to the crime, defendant has notshown a reasonable probability that such a mistake or mistakes affected the outcome of the trial(see Strickland, 466 US at 694). We are not persuaded that the photographs eviscerateddefendant's defense or were otherwise so prejudicial as to undermine confidence in the result. Theevidence adduced at the hearing and properly credited by the court establishes that the remaining actsor omissions of counsel that defendant challenges met an "objective standard of reasonableness"(id. at 688). In any event, we also conclude that none of these acts or omissions, viewedindividually or collectively, had a reasonable probability of affecting the outcome or depriving defendantof a fair trial. In particular, defendant has not shown how [*2]differentcourses of action by counsel would have improved the quality or quantity of the evidence that counselplaced before the jury to impeach the victim's credibility and the reliability of his identification.
None of the trial court's evidentiary rulings warrant reversal. While a detective gave testimony thatcould be viewed as implicitly bolstering the victim's identification, the court's limiting instruction wassufficient to prevent any prejudice. The court gave defendant ample latitude in which to impeach thevictim as to all matters relating to his credibility, and it properly exercised its discretion in limitingimpeachment that was contrary to the rules of evidence. Accordingly, there was no violation ofdefendant's right to confront witnesses and present a defense (see Delaware v Van Arsdall,475 US 673, 678-679 [1986]).
Defendant did not preserve his challenge to the court's response to the jury's deadlock note, andwe decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal.The charge contained language that effectively conveyed the concept that it was the jurors' "duty todecide the case if they could conscientiously do so" (Allen v United States, 164 US 492, 501[1896]), and it was not constitutionally deficient (see Spears v Greiner, 459 F3d 200 [2d Cir2006]). We have considered and rejected defendant's additional ineffective assistance of counsel claimrelating to this issue.
The DNA databank fee should not have been imposed, as the authorizing legislation (Penal Law§ 60.35 [1] [former (e)] [now Penal Law § 60.35 (1) (a) (v)]) became effective after thecrime was committed. Concur—Gonzalez, P.J., Saxe, Nardelli, Richter and RomÁn, JJ.