| People v Lane |
| 2011 NY Slip Op 02748 [83 AD3d 1118] |
| April 7, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Stephen S.Lane, Appellant. |
—[*1] Gwen Wilkinson, District Attorney, Ithaca (Andrew J. Bonavia of counsel), forrespondent.
Mercure, J.P. Appeals (1) from a judgment of the County Court of Tompkins County (Ames,J.), rendered May 19, 2009, upon a verdict convicting defendant of the crime of assault in thesecond degree, and (2) by permission, from an order of said court, entered July 2, 2010, whichdenied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, withouta hearing.
Following a jury trial, defendant was convicted of one count of assault in the second degreearising from his striking the victim in the head with a glass wine bottle. He was sentenced, as asecond felony offender, to a prison term of 3½ years to be followed by five years ofpostrelease supervision. County Court thereafter denied, without a hearing, defendant's motion tovacate the judgment of conviction pursuant to CPL 440.10. He now appeals from both thejudgment of conviction and the order denying his motion to vacate it, arguing that he wasdeprived of the effective assistance of counsel. We disagree.
Defendant asserts that he would have accepted a pre-indictment offer to plead guilty to amisdemeanor if defense counsel had informed him that, as a second felony offender, the offerwould not be available following his indictment (see CPL 220.10 [5] [c]). Whendefendant rejected the plea offer, the People withdrew it. Defendant is therefore required todemonstrate [*2]that he would have accepted the plea at the timeit was offered had he understood the procedural realities of his case (see People v Gilmore, 72 AD3d1191, 1194 [2010]; People vThomson, 46 AD3d 939, 940-941 [2007], lv denied 9 NY3d 1039 [2008];People v Rosenthal, 304 AD2d 418, 419 [2003], lv denied 100 NY2d 586[2003]). In our view, his self-serving affidavit is insufficient in that regard and, thus, CountyCourt did not abuse its discretion in denying his CPL article 440 motion without a hearing underthe circumstances of this case (seePeople v Fernandez, 5 NY3d 813, 814 [2005]).
Defendant also points to purported deficiencies in counsel's trial performance, but "[a]contention of ineffective assistance of trial counsel requires proof of less than meaningfulrepresentation, rather than simple disagreement with strategies and tactics" (People vRivera, 71 NY2d 705, 708-709 [1988]; see People v Baker, 14 NY3d 266, 270-271 [2010]). Defendantclaims that counsel was ineffective in questioning him regarding his prior criminal convictionsupon redirect examination, despite the People's failure to address the subject oncross-examination. Defendant did disclose during cross-examination, however, that he was onprobation and had fled the scene after striking the victim, leading the People to suggest that hedid so out of an awareness of guilt. Defense counsel therefore elicited defendant's prior criminalhistory to explain that he fled because he believed that the police were prejudiced against himand would charge him even if he acted in self-defense, as he claimed (see People v Hannah, 59 AD3d307, 307 [2009], lv denied 12 NY3d 854 [2009]; People v Shannon, 92AD2d 554, 556 [1983]). While defendant further points to counsel's stipulation that the victimwas physically injured, the injuries were undisputed and the stipulation led to the People'swithdrawal of medical evidence that could have emphasized the severity of the injuries (seePeople v Vega, 268 AD2d 257 [2000], lv denied 94 NY2d 921 [2000]; People vBrown, 175 AD2d 210, 211 [1991]). In short, when viewing the circumstances of this case"in totality and as of the time of the representation," we conclude that defense counsel providedmeaningful representation (People v Baldi, 54 NY2d 137, 147 [1981]; accord Peoplev Benevento, 91 NY2d 708, 712 [1998]).
We have considered and are unpersuaded by defendant's remaining claim that his sentencewas harsh and excessive.
Rose, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment and order are affirmed.