| People v Leath |
| 2012 NY Slip Op 06035 [98 AD3d 690] |
| August 22, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JohnLeath, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.),rendered October 28, 2009, convicting him of murder in the second degree and tampering withphysical evidence, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that he was deprived of the effective assistance of counsel. "Underthe New York Constitution, '[s]o long as the evidence, the law, and the circumstances of aparticular case, viewed in totality and as of the time of the representation, reveal that the attorneyprovided meaningful representation, the constitutional requirement will have been met' " (People v Collado, 90 AD3d 672,672-673 [2011], quoting People v Baldi, 54 NY2d 137, 147 [1981]; see People vBenevento, 91 NY2d 708, 712 [1998]; People v Bowles, 89 AD3d 171 [2011]). "[I]neffectiveness claimsmust be viewed within the context of the fairness of the process as a whole rather than itsparticular impact on the outcome of the case" (People v Clermont, 95 AD3d 1349, 1351 [2012]; see People vBenevento, 91 NY2d at 714). "Isolated errors in counsel's representation generally will notrise to the level of ineffectiveness, unless the error is so serious that defendant did not receive afair trial" (People v Henry, 95 NY2d 563, 565-566 [2000], quoting People vFlores, 84 NY2d 184, 188-189 [1994] [internal quotation marks omitted]; see People vCollado, 90 AD3d at 673). Here, contrary to the defendant's contention, he was not deprivedof the effective assistance of counsel. Viewed in totality, defense counsel provided meaningfulrepresentation (see People v Benevento, 91 NY2d at 712; People v Baldi, 54NY2d at 147).
Moreover, the Supreme Court properly declined to charge manslaughter in the second degreeas a lesser-included offense of murder in the second degree. There was no reasonable view of theevidence that would support a finding that the defendant acted recklessly in causing the victim'sdeath (see People v Pizarro, 89AD3d 871 [2011]; People v Davis, 300 AD2d 673, 674 [2002]).
Further, there is no merit to the defendant's contention that the Supreme Court erred inpermitting the prosecution to elicit hearsay testimony from a witness relating to the defendant'smotive, as this testimony was admissible under the "state-of-mind" exception to the hearsay rule(see [*2]People v Damon, 78 AD3d 860 [2010]; People v Jean-Baptiste, 51 AD3d1037, 1038 [2008]; People vRose, 41 AD3d 742, 742-743 [2007]).
The defendant's contention, raised in point 5 of his brief, is without merit. The defendant'sremaining contentions are unpreserved for appellate review, and, in any event, without merit.Dillon, J.P., Leventhal, Austin and Roman, JJ., concur.