| People v Weatherspoon |
| 2011 NY Slip Op 05989 [86 AD3d 792] |
| July 21, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v GuyWeatherspoon, Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Spain, J.P. Appeals (1) from a judgment of the County Court of Greene County (Lalor, J.),rendered November 25, 2008, upon a verdict convicting defendant of the crime of assault in thesecond degree, and (2) by permission, from an order of said court, entered August 5, 2010, whichdenied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, withouta hearing.
In August 2006, while an inmate at Coxsackie Correctional Facility in Greene County,defendant was accused of punching a correction officer. Shortly thereafter, the Department ofCorrectional Services completed an investigation into the incident and, less than nine monthslater, defendant was indicted on two counts of assault in the second degree. Following a jurytrial, defendant was acquitted of the first count (see Penal Law § 120.05 [3]), butconvicted of the remaining count (see Penal Law § 120.05 [7]). Thereafter,defendant was sentenced to a prison term of seven years to be served consecutively to thesentence he was already serving, plus five years of postrelease supervision. County Courtdenied—without a hearing—defendant's subsequent motion to vacate the judgmentof conviction pursuant to CPL 440.10. Defendant now appeals from the judgment of convictionand, by permission, from the order denying his motion to vacate.[*2]
Defendant initially contends that the preindictment delaydeprived him of due process. However, applying the factors set forth in People vTaranovich (37 NY2d 442, 445 [1975]), we find that the instant preindictment delay was notso unreasonable as to result in a due process violation. Although the People have not explainedthe delay, a nine-month gap between the commission of an offense and the resulting indictmentis "comparatively brief" (People v Allah, 264 AD2d 902, 903 [1999]), and similarperiods of delay have repeatedly been found to be within constitutional parameters (see e.g. People v Striplin, 48 AD3d878 [2008], lv denied 10 NY3d 871 [2008] [9½-month delay]; People vCoggins, 308 AD2d 635 [2003] [9½-month delay]; People v Hernandez, 306AD2d 751 [2003] [nine-month delay]; People v Irvis, 301 AD2d 782 [2003], lvdenied 99 NY2d 655 [2003] [10-month delay]; People v Allah, 264 AD2d 902[1999] [nine-month delay]). Given that defendant was already imprisoned for a prior felonyconviction, his liberty interest was not impacted (see People v Striplin, 48 AD3d at 879;People v McCormick, 17 AD3d785, 786 [2005]; People v Andrade, 301 AD2d 797, 798 [2003]), and he has failedto demonstrate that his defense was impaired by the delay (see People v Vernace, 96NY2d 886, 888 [2001]; People v Richardson, 298 AD2d 711, 712 [2002]). Consideringthe foregoing, along with the serious nature of the charged crimes, we find that defendant's dueprocess rights were not violated by the preindictment delay.
Defendant's related contention that he was denied the effective assistance of counsel due inpart to counsel's alleged insufficient support of defendant's pro se pretrial motion to dismissbased upon the preindictment delay is also unavailing. In assessing a claim of ineffectiveassistance, " '[o]ur focus is on the fairness of the proceedings as a whole' " (People v Mosby, 78 AD3d 1371,1373 [2010], lv denied 16 NY3d 834 [2011], quoting People v Stultz, 2 NY3d 277, 284 [2004]). To prevail, a "defendantmust demonstrate that his [or her] attorney failed to provide meaningful representation" and " 'theabsence of strategic or other legitimate explanations' for counsel's allegedly deficient conduct"(People v Caban, 5 NY3d 143,152 [2005], quoting People v Rivera, 71 NY2d 705, 709 [1988]; see People v Evans, 81 AD3d1040, 1041 [2011]). Here, defendant's assertion that counsel should have more vigorouslysupported his preindictment delay motion cannot serve as a basis for a claim of ineffectiveassistance, as ineffective assistance does not result from counsel's failure to "make [or moreenthusiastically support] a motion or argument that has little or no chance of success" (Peoplev Caban, 5 NY3d at 152 [internal quotation marks and citation omitted]; see People v Campbell, 17 AD3d925, 926 [2005], lv denied 5 NY3d 760 [2005]).
Similarly meritless is defendant's contention that he was denied meaningful representation asa result of counsel's erroneous advice to accept a plea bargain that included a sentencerecommendation by the People that could not be legally imposed. Defendant initially pleadedguilty to both counts of the indictment—two class D violent felonies—in exchangefor a recommended prison sentence of 2 to 4 years, which he was later permitted to withdrawafter it was discovered that the recommended sentence would be illegal given his status as asecond felony offender. Following further negotiations, defendant refused a new offer to pleadguilty to a single count of attempted assault in the second degree—a class E nonviolentfelony—in exchange for the same sentence recommendation of 2 to 4 years consecutive tothe sentence he was already serving. Although counsel's initial advice was erroneous, the errorwas corrected, and it ultimately led to the negotiation of an even more favorable offer. Therefore,it cannot be said that counsel was ineffective in this regard (see People v Gregory, 290AD2d 810, 812 [2002], lv denied 98 NY2d 675 [2002]; see also People v Jackson, 30 AD3d824, 825 [2006]).[*3]
Finally, although defendant raises numerous complaintswith regard to counsel's preparation and performance at trial and sentencing, we do not find thoseaspects of the representation to have been ineffective. While counsel provided only a briefopening statement and called no witnesses to testify, defendant has failed to demonstrate theabsence of a strategy or other legitimate explanation for counsel's approach. Defendant does notclaim that he communicated a desire to testify, nor has he identified any additional witness whoshould have been called. Indeed, counsel extensively cross-examined the People's witnesses,made relevant objections throughout the trial, was active in the jury charge conference anddelivered a cogent closing argument. Moreover, defendant was acquitted of the first count of theindictment (see People v Elwood,80 AD3d 988, 990 [2011], lv denied 16 NY3d 858 [2011]; People v Battease, 74 AD3d 1571,1575 [2010], lv denied 15 NY3d 849 [2010]; People v Hutchinson, 57 AD3d 1013, 1014 [2008], lvdenied 12 NY3d 817 [2009]). Even if counsel's representation was less than perfect,considering "the evidence, the law, and the circumstances of [the] case, viewed in totality and asof the time of the representation" (People v Baldi, 54 NY2d 137, 147 [1981]; seePeople v Battease, 74 AD3d at 1575), we conclude that defendant received meaningfulrepresentation.
We have considered defendant's remaining arguments and find them unavailing.
Kavanagh, Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment and order areaffirmed.