| People v Head |
| 2011 NY Slip Op 08848 [90 AD3d 1157] |
| December 8, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v TikoD. Head, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Peters, J.P. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered August 13, 2010, upon a verdict convicting defendant of the crimes of criminalcontempt in the first degree and menacing in the second degree.
Defendant was convicted following a jury trial of criminal contempt in the first degree andmenacing in the second degree arising from an incident wherein he threatened the victim, hisex-girlfriend, with a dangerous instrument. Sentenced as a second felony offender to an aggregateprison term of 2 to 4 years, he now appeals.
Defendant's claims of prosecutorial misconduct are unpreserved for our review, as noobjections were raised before County Court (see People v Terry, 85 AD3d 1485, 1487 [2011], lv denied17 NY3d 862 [2011]; People vHenry, 64 AD3d 804, 806 [2009], lv denied 13 NY3d 860 [2009]). In any event,were these claims properly before us, we would find no impropriety that deprived defendant of afair trial. Inasmuch as defendant's testimony during both direct and cross-examination clearlysuggested that the People's witnesses had fabricated their testimony, it was not improper for theprosecutor to ask him whether he believed that the People's witnesses had lied during theirtestimony (see People v Buel, 53AD3d 930, 932 [2008]; People vAllen, 13 AD3d 892, 897 [2004], lv denied 4 NY3d 883 [2005]; People vOverlee, 236 AD2d 133, 139 [1997], lv denied 91 NY2d 976 [1998]). Furthermore,the portion of the prosecutor's summation [*2]which defendantnow challenges constituted fair comment on the evidence and the reasonable inferences to bedrawn therefrom (see People vTaylor, 68 AD3d 1728, 1728 [2009], lv denied 14 NY3d 845 [2010]; People v Davis, 21 AD3d 1336,1338 [2005], lv denied 6 NY3d 811 [2006]; People v Desordi, 238 AD2d 738,740 [1997], lv denied 90 NY2d 904 [1997]; People v Racine, 132 AD2d 899, 900[1987], lv denied 70 NY2d 754 [1987]). While the prosecutor should not have attemptedto appeal to the sympathy of the jury by asking the jury during opening statements to "join [thevictim] in the fight back" (see People vNelson, 68 AD3d 1252, 1255 [2009]), this isolated comment was not so substantiallyprejudicial as to deprive defendant of a fair trial, particularly in light of the strength of thePeople's case and the overwhelming proof of defendant's guilt (see id.; People v Thornton, 4 AD3d 561,563 [2004], lv denied 2 NY3d 808 [2004]; People v Hamilton, 227 AD2d 669,672 [1996], lv denied 88 NY2d 1068 [1996]).
We are unpersuaded by defendant's contention that counsel's failure to request anintoxication charge constituted ineffective assistance of counsel. While defendant testified that he"drank a little bit" prior to the incident and one of the People's witnesses described him asintoxicated, there was no evidence that defendant's mental state at the time he committed theseoffenses was affected by alcohol (see People v Gaines, 83 NY2d 925, 927 [1994]; People v Robetoy, 48 AD3d 881,882 [2008]; People v Van Ness, 43AD3d 553, 555 [2007], lv denied 9 NY3d 965 [2007]). Moreover, an intoxicationcharge would have been inconsistent with the theory proffered by the defense that defendantneither threatened nor hit the victim (see People v Van Ness, 43 AD3d at 555).Consistent with that theory, defense counsel attacked the credibility of the People's witnesses andthe veracity of the victim and, notably, obtained an acquittal on a count of the indictmentcharging defendant with striking or attempting to strike the victim. Although the defense was notentirely successful, we will not second-guess that reasonable strategy (see People v McCall, 75 AD3d999, 1002 [2010], lv denied 15 NY3d 894 [2010]; People v Cruz, 61 AD3d 1111,1112-1113 [2009]; People v Van Ness, 43 AD3d at 555). Moreover, counsel madeappropriate pretrial motions, delivered cogent opening and closing arguments, thoroughlycross-examined the People's witnesses and highlighted inconsistencies in the testimony to thejury. Viewing the record as a whole, defendant received meaningful representation (seePeople v Benevento, 91 NY2d 708, 712 [1998]; People v Williamson, 77 AD3d 1183, 1185 [2010]).
Spain, McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.