| People v Kuforiji |
| 2011 NY Slip Op 07529 [88 AD3d 1165] |
| October 27, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v OluseyiKuforiji, Also Known as Akon, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered September 18, 2008, upon a verdict convicting defendant of the crimes of criminalpossession of a forged instrument in the first degree (four counts).
As a result of an investigation conducted by the United States Secret Service and the Townof Colonie Police Department into suspected passing of counterfeit currency to area businesses, asearch warrant was executed at defendant's residence and defendant was taken into custody bythe City of Albany Police Department. While in police custody, defendant was discovered eatingwhat police officers believed to be counterfeit paper currency. An unsuccessful struggle toextract the paper from defendant's mouth, and subsequent search of defendant's jacket whichuncovered four $10 counterfeit bills, led to defendant's indictment for four counts of criminalpossession of a forged instrument in the first degree and one count of tampering with physicalevidence. After a jury trial, defendant was acquitted of the tampering with evidence charge,convicted of the four counts of criminal possession of a forged instrument and sentenced to aprison term of 3 to 9 years on each count, to run concurrently. Defendant now appeals, arguingthat he is entitled to a new trial because he was denied meaningful representation.[*2]
We affirm. A defendant receives the effective assistanceof counsel when the representation is "meaningful" (People v Benevento, 91 NY2d 708,712 [1998] [internal quotation marks omitted]; see People v Baldi, 54 NY2d 137, 147[1981]), which requires consideration of "the fairness of the process as a whole rather than itsparticular impact on the outcome of the case" (People v Benevento, 91 NY2d at 714; see People v Elwood, 80 AD3d988, 990 [2011], lv denied 16 NY3d 858 [2011]). Furthermore, to establishineffective assistance of counsel, "a defendant must 'demonstrate the absence of strategic or otherlegitimate explanations' for counsel's allegedly deficient conduct" (People v Caban, 5 NY3d 143, 152[2005], quoting People v Rivera, 71 NY2d 705, 709 [1988]).
Defendant does not contend that defense counsel committed a single error which, standingalone, would demonstrate a lack of meaningful representation but, rather, asserts that ineffectiveassistance of counsel is evident by considering the totality of the circumstances. First, defendantpoints to counsel's admission, at the suppression hearing, that he was unfamiliar with a recentcase out of the Appellate Division, Fourth Department, pertaining to the right to counsel aboutwhich County Court inquired. Defendant asserts that counsel should have worked to distinguishthe facts of that case from the instant case in order to discourage County Court from relying uponit, but offers no clear suggestion for how the case might have been successfully distinguished.Further, in light of counsel's other efforts to suppress his statements to police officers, includinghis examining and cross-examining witnesses at the suppression hearing and submitting amemorandum of law on the matter, we conclude that defendant received meaningfulrepresentation at the suppression hearing (see People v Wright, 256 AD2d 643, 646-647[1998], lv denied 93 NY2d 880 [1999]; People v Herr, 161 AD2d 1031, 1033[1990], lv denied 76 NY2d 858 [1990]).
Next, defendant challenges counsel's failure to object to a juror who admitted that he hadpersonal experience with counterfeit money. At the conclusion of the first day of trial, a jurorcame forward and explained to County Court in front of the People and defense counsel that, twoyears prior to the trial, he had come in contact with counterfeit currency and turned it over to thepolice. County Court and the People inquired of the juror if he could remain fair and impartial inlight of this revelation, and the juror responded that this previous experience would not play anypart in his consideration of the case. Based on the assurances received from the juror of hisability to remain fair and impartial, we find no error in defense counsel's failure to conduct adeeper inquiry before consenting that the juror remain on the jury (see People v Molano, 70 AD3d1172, 1176-1177 [2010], lv denied 15 NY3d 776 [2010]).
Next, while defendant criticizes counsel's assertion to the jury in his opening statement that"it would seem this is a pretty [solid] case and pretty simple case," defendant takes the statementout of context. In fact, counsel's statement began "from what you heard from [the prosecutor] itwould seem" and served as a prelude for counsel to explain that the case against defendant wasnot, in fact, as simple as the People attempted to portray it. Further, defense counsel's failure toobject to questions posed by the People to a codefendant who had accepted a plea and testifiedagainst defendant which presumed that he was defendant's good friend was a legitimate trialstrategy, given the defense theory explaining his testimony against defendant (see People v Rote, 28 AD3d 868,870 [2006]; People v Rosado, 13AD3d 902, 903-904 [2004], lv denied 4 NY3d 835 [2005]).
Turning to defendant's assault on counsel's cross-examination of the People's witnesses, weconclude that counsel provided meaningful representation during this stage of the trial as [*3]well. Indeed, after carefully considering the record and myriadallegations of error outlined by defendant, we find only one clear instance where counsel erred.Counsel failed to obtain the transcript of the suppression hearing that would have been necessaryto impeach the trial testimony of witnesses. However, a review of the transcripts of thesuppression hearing and of the trial reveals that there were no inconsistencies that could havesignificantly benefitted defendant. Thus, overall, we find that defense counsel provided defendantwith effective assistance by zealously advocating for his client throughout the proceedings,requesting appropriate pretrial hearings and discovery and pursuing a plausible defense strategy,all of which led to defendant's acquittal on the tampering charge. Accordingly, we hold that therepresentation afforded defendant was meaningful at every critical stage and thus not ineffective(see People v Elwood, 80 AD3d at 990; People v King, 79 AD3d 1277, 1280 [2010], lv denied 16NY3d 860 [2011]; People vBlanchard, 63 AD3d 1291, 1292 [2009], lv denied 13 NY3d 794 [2009]).
Mercure, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.