| People v Walston |
| 2012 NY Slip Op 05447 [97 AD3d 609] |
| July 5, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamelWalston, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.),rendered June 8, 2010, convicting him of manslaughter in the first degree and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that he was deprived of the effective assistance of counsel iswithout merit. The defendant's claim is based upon defense counsel's failure to request a chargeof manslaughter in the second degree as a lesser included offense of murder in the second degree."What constitutes effective assistance is not and cannot be fixed with yardstick precision, butvaries according to the unique circumstances of each representation" (People v Baldi, 54NY2d 137, 146 [1981]). The critical issue is whether, viewing the evidence, the law, and thecircumstances of the case together as of the time of representation, defense counsel providedmeaningful representation (see People v Hobot, 84 NY2d 1021 [1995]; People vBenn, 68 NY2d 941 [1986]; People v Baldi, 54 NY2d at 146). Moreover, under thefederal standard, to prevail on a claim of ineffective assistance of counsel, a "defendant mustshow that counsel's representation fell below an objective standard of reasonableness" and "thatthere is a reasonable probability that, but for counsel's unprofessional errors, the result of theproceeding would have been different" (Strickland v Washington, 466 US 668, 688, 694[1984]; see People v Bodden, 82AD3d 781 [2011]).
Here, defense counsel was correct in not asking for a charge on manslaughter in the seconddegree because there is no reasonable view of the evidence that would have supported a findingthat the defendant acted recklessly in repeatedly shooting the victim (see People vHenderson, 41 NY2d 233, 235 [1976]; People v Etienne, 250 AD2d 776 [1998]).The defendant was provided with meaningful representation (see People v Benevento, 91NY2d 708 [1998]; People v Wiggins, 89 NY2d 872 [1996]; People v Hobot, 84NY2d at 1021; People v Baldi, 54 NY2d at 146; People v Frye, 210 AD2d 503[1994]; People v Sullivan, 153 AD2d 223 [1990]).
The defendant additionally contends, relying upon the United States Supreme Court'sdecision in Presley v Georgia (558 US 209 [2010]), that his right to apublic trial [*2]was violated when the Supreme Court, KingsCounty, temporarily excluded observers from the courtroom during initial portions of the voirdire because there was seating available only for the prospective jurors. However, at no pointduring voir dire did the defendant raise any objection to the temporary closure of the courtroom.Accordingly, the defendant's claim that his right to a public trial was violated is unpreserved forappellate review (see People vBorukhova, 89 AD3d 194, 225 [2011]; People v George, 79 AD3d 1148 [2010], lv granted 16NY3d 895 [2011]; People vAlvarez, 76 AD3d 1098 [2010], lv granted 16 NY3d 827 [2011]; People v Varela, 22 AD3d 264,265 [2005]; People v Vatansever, 5AD3d 406, 407 [2004]; People v Mojica, 279 AD2d 591, 592 [2001]; cf. Peoplev Garcia, 95 NY2d 946, 947 [2000]), and we decline to review it in the exercise of ourinterest of justice jurisdiction (see CPL 470.05 [2]).
Since the defendant did not object to the Supreme Court's initial approach to the handling ofa note from the jury, his claim that the Supreme Court did not meaningfully respond to the note isnot preserved for appellate review (see CPL 470.05 [2]; People v Kadarko, 14 NY3d 426,429 [2010]; People v Battle, 15AD3d 413 [2005]; People v Smith, 255 AD2d 404, 405 [1998]; People vDavis, 223 AD2d 376, 377 [1996]), and we decline to review it in the exercise of our interestof justice jurisdiction (see CPL 470.05 [2]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Skelos, J.P., Florio, Lott andMiller, JJ., concur.
[Recalled and vacated, see 101 AD3d 1156.]