| People v Jordan |
| 2012 NY Slip Op 07153 [99 AD3d 1109] |
| October 25, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v William D.Jordan, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered December 16, 2010, upon a verdict convicting defendant of the crimes of murder in thesecond degree and assault in the first degree.
Defendant was involved in a physical altercation with the victim outside a bar, during whichdefendant allegedly stabbed the victim with an ice pick, causing his death. Defendant wasindicted for murder in the second degree and assault in the first degree. After a jury trial,defendant was found guilty as charged. Defendant now appeals and we affirm.
Defendant's contentions regarding several alleged acts of misconduct by the prosecutorduring the course of the trial and in his summation are not preserved for our review because noobjections were raised with regard thereto before County Court (see CPL 470.05 [2]; People v Mosher, 94 AD3d 1231,1233 [2012], lv denied 19 NY3d 999 [2012]; People v Westervelt, 47 AD3d 969, 974 [2008], lv denied10 NY3d 818 [2008]). Nor do we find, after reviewing the record, that the acts complained ofwarrant corrective action in the exercise of our interest of justice jurisdiction. Inasmuch as therewas overwhelming proof of defendant's guilt and there is no significant probability that the jurywould have acquitted defendant had it not been for the claimed errors that occurred, none of theacts—nor all taken in combination—even if improper, were so prejudicial as todeprive defendant of a fair trial (see People v Crimmins, 36 NY2d 230, [*2]242 [1975]; People v Head, 90 AD3d 1157, 1158 [2011]; People v Manning, 81 AD3d 1181,1184 [2011], lv denied 18 NY3d 959 [2012]; People v Westervelt, 47 AD3d at974).
We find no merit to defendant's contention that he was denied the effective assistance ofcounsel. Defendant was not entitled to a perfect trial (see People v Wiltshire, 96 AD3d 1227, 1228 [2012]; People v Elwood, 80 AD3d 988,990 [2011], lv denied 16 NY3d 858 [2011]). In any event, defendant has notdemonstrated the absence of strategic or other legitimate explanations for counsel's allegeddeficiencies with regard to his questioning on direct examination and failure to object to certainquestions posed, and statements made, by the prosecutor (see People v Kuforiji, 88 AD3d 1165, 1166 [2011]). Nor doescounsel's failure to preserve defendant's prosecutorial misconduct argument establish ineffectiveassistance under the circumstances here (see People v Wiltshire, 96 AD3d at 1229;People v Elwood, 80 AD3d at 990).
Moreover, defense counsel engaged in proper motion practice, conducted substantialcross-examination of the People's witnesses, thoroughly examined defendant on directexamination, made numerous timely objections and presented a cogent defense theory, despiteoverwhelming evidence of defendant's guilt. Viewing the evidence, the law and thecircumstances of the case in totality and as of the time of the representation, we are satisfied thatdefendant was provided meaningful representation (see People v Benevento, 91 NY2d708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]; People v Wiltshire,96 AD3d at 1230; People v Nguyen,90 AD3d 1330, 1335 [2011], lv denied 18 NY3d 960 [2012]; compare People v Miller, 63 AD3d1186 [2009]).
Defendant's remaining contentions have been examined and are unavailing.
Rose, J.P., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.