| People v Walston |
| 2012 NY Slip Op 09093 [101 AD3d 1156] |
| December 26, 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.
Motion by the appellant for leave to reargue an appeal from a judgment of the SupremeCourt, Kings County, rendered June 8, 2010, which was determined by decision and order of thisCourt dated July 5, 2012.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, itis,
Ordered that the motion is granted, and upon reargument, the decision and order of this Courtdated July 5, 2012 (People vWalston, 97 AD3d 609 [2012]), is recalled and vacated and the following decision andorder is substituted therefor:
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]).[*2]
Here, defense counsel was correct in declining to ask fora charge on manslaughter in the second degree because there is no reasonable view of theevidence that would have supported a finding that the defendant acted recklessly in repeatedlyshooting the victim (see People v Henderson, 41 NY2d 233, 235 [1976]; People vEtienne, 250 AD2d 776 [1998]). The defendant was provided with meaningfulrepresentation (see People v Benevento, 91 NY2d 708 [1998]; People v Wiggins,89 NY2d 872 [1996]; People v Hobot, 84 NY2d at 1021; People v Baldi, 54NY2d at 146; People v Frye, 210 AD2d 503 [1994]; People v Sullivan, 153AD2d 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 a public trial wasviolated when the Supreme Court temporarily excluded observers from the courtroom duringinitial portions of the voir dire because there was seating available only for the prospective jurors.However, at no point during voir dire did the defendant raise any objection to the temporaryclosure of the courtroom. Accordingly, the defendant's claim that his right to a public trial wasviolated is unpreserved for appellate review (see People v Alvarez, 20 NY3d 75 [2012]), and we decline toreview it in the exercise of our interest of justice jurisdiction (see CPL 470.05 [2]).
The defendant's contention that the Supreme Court's procedure for handling a certain jurynote violated the procedure set forth by the Court of Appeals in People v O'Rama (78NY2d 270, 277-278 [1991]) is unpreserved for appellate review (see People v Ramirez, 15 NY3d824 [2010]). Furthermore, the alleged error did not constitute a mode of proceedings errorwhich would obviate the preservation requirement (see People v Alcide, 95 AD3d 897, 898 [2012], lv granted19 NY3d 956 [2012]; People vBryant, 82 AD3d 1114, 1114 [2011]; cf. People v Lockley, 84 AD3d 836 [2011]), and we decline toreview it in the exercise of our interest of justice jurisdiction (see CPL 470.05 [2]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Skelos, J.P., Florio, Lott and Miller, JJ., concur.