| People v Sinclair |
| 2011 NY Slip Op 09402 [90 AD3d 1518] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ChaseSinclair, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Loretta S. Courtney of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Elma A. Bellini, J.), rendered March14, 2008. The judgment convicted defendant, upon a jury verdict, of criminal possession of aweapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [3]), defendant contendsthat he was denied effective assistance of counsel due to the failure of defense counsel to requestthe form jury instruction regarding the voluntariness of statements (see CJI2d[NY]Statements—Expanded Charge on Traditional Voluntariness). We reject that contention.Upon our review of the evidence, the law, and the circumstances of this case, viewed in totalityand as of the time of the representation, we conclude that defense counsel afforded defendant"meaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]). The single erroralleged by defendant was not "sufficiently egregious and prejudicial as to compromise. . . [his] right to a fair trial" (People v Caban, 5 NY3d 143, 152 [2005]), and there is no"reasonable likelihood that the [alleged] error, standing alone, changed the outcome of the case"(People v Douglas, 296 AD2d 656, 657 [2002], lv denied 99 NY2d 535 [2002]).Indeed, we conclude that defendant failed " 'to demonstrate the absence of strategic or otherlegitimate explanations' for [defense] counsel's alleged shortcoming[ ]" (People vBenevento, 91 NY2d 708, 712 [1998], quoting People v Rivera, 71 NY2d 705, 709[1988]). In light of the evidence presented at trial, defense counsel reasonably could have decidedthat the expanded charge on the voluntariness of defendant's confession would be futile or evencounterproductive, and instead reasonably could have decided that a more successful strategywas likely to be attacking defendant's confession on the ground that it was not sufficientlycorroborated (see CJI2d[NY] Corroboration of Statements; People v Parrotte, 34 AD3d 921,922 [2006]). Present—Centra, J.P., Peradotto, Carni, Lindley and Sconiers, JJ.