| People v Horton |
| 2010 NY Slip Op 09634 [79 AD3d 1614] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Darius L.Horton, Appellant. |
—[*1] Darius L. Horton, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), renderedApril 13, 2006. The judgment convicted defendant, upon a jury verdict, of assault in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of assault inthe second degree (Penal Law § 120.05 [2]), defendant contends that the verdict is againstthe weight of the evidence. We reject that contention. Defendant was identified at trial by thevictim, who had observed defendant on two occasions prior to the assault. "[T]hose who see andhear the witnesses can assess their credibility and reliability in a manner that is far superior tothat of reviewing judges who must rely on the printed record" (People v Lane, 7 NY3d 888, 890[2006]), and it cannot be said in this case that the jury failed to give the evidence the weight itshould be accorded (see People vHill, 74 AD3d 1782 [2010], lv denied 15 NY3d 805 [2010]). Thus, viewing theevidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant failed to preserve for our review his contention that County Court erred in denyinghis challenge for cause to a prospective juror on the ground that she raised her hand when askedby defense counsel whether anyone on the panel would have "a problem" if defendant elected toexercise his right to remain silent and not testify at trial (see CPL 470.05 [2]). Defendantchallenged that prospective juror for cause on another ground, i.e., based on comments that shemade about defendant's custodial status, and we decline to exercise our power to addressdefendant's contention concerning the prospective juror's "problem" in the event that defendantdid not testify as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).We reject the further contention of defendant that the court erred in denying his challenge forcause to the prospective juror based upon the concerns that she expressed with regard to hiscustodial status. Even assuming, arguendo, that the prospective juror's concerns initially "castserious doubt on [her] ability to render an impartial verdict" (People v Arnold, 96 NY2d358, [*2]363 [2001]), we conclude that the record establishes thatthe court thereafter obtained from the prospective juror the requisite "unequivocal assurance that[she could] set aside any bias and render an impartial verdict based on the evidence" (Peoplev Johnson, 94 NY2d 600, 614 [2000]).
Defendant failed to preserve for our review his contention that he was deprived of a fair trialby prosecutorial misconduct (see People v McMillan, 234 AD2d 1006 [1996], lvdenied 89 NY2d 1038 [1997]) and, in any event, that contention lacks merit. Although weagree with defendant that certain of the prosecutor's remarks may have exceeded the bounds oflegitimate advocacy, we conclude that they were not so egregious as to deprive defendant of afair trial (see id.; People v Pennington, 217 AD2d 919 [1995], lv denied87 NY2d 906 [1995]).
We reject the contention of defendant in his main brief and pro se supplemental brief that hewas denied effective assistance of counsel. Although defendant contends that defense counsel didnot adequately impeach the victim on cross-examination with prior inconsistent statements, wenote that he called as witnesses all of the individuals to whom the prior inconsistent statementswere made, and those witnesses testified without objection to those statements. Thus, the jurywas able to consider the victim's prior inconsistent statements in evaluating the credibility of thevictim. The further contention of defendant that he was denied effective assistance of counselbased on the fact that his omnibus motion contained requests for relief that did not apply to thiscase also is lacking in merit. Defendant does not contend that the omnibus motion failed toinclude appropriate requests for relief, and it therefore cannot be said that defendant was deniedeffective assistance of counsel with respect to the omnibus motion. Moreover, defense counsel'sfailure to make a specific motion for a trial order of dismissal at the close of the People's case didnot constitute ineffective assistance of counsel, inasmuch as any such motion would have had nochance of success (see generally Peoplev Stultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]). Indeed, wenote that defendant does not contend on appeal that the evidence at trial is legally insufficient.We have reviewed the remaining alleged deficiencies in defense counsel's performance andconclude that defendant received meaningful representation (see generally People vBaldi, 54 NY2d 137, 147 [1981]).
We have reviewed the remaining contentions raised in defendant's main brief and pro sesupplemental brief and conclude that they are without merit. Present—Centra, J.P., Fahey,Peradotto, Lindley and Green, JJ.