| People v Brown |
| 2013 NY Slip Op 01685 [104 AD3d 1203] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vDonnell M. Brown, Appellant. |
—[*1] Donnell M. Brown, defendant-appellant pro se. Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D.Valentino, J.), rendered December 5, 2008. The judgment convicted defendant, upon ajury verdict, of assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of assault in the second degree (Penal Law § 120.05 [2]), arising from astabbing incident. Following the stabbing, the victim's roommate called 911 to report theincident. Defendant contends that he was denied effective assistance of counsel whendefense counsel stipulated to the admission of the 911 recording in evidence at trialbecause it contained inadmissible hearsay that bolstered the testimony of the victim andprejudiced his defense of the case. Although we agree with defendant that defensecounsel erred in stipulating to the admission of inadmissible hearsay, we rejectdefendant's contention that this single error was sufficiently egregious as to deprive himof a fair trial (see People vWells, 101 AD3d 1250, 1255 [2012]; People v Singh, 16 AD3d 974, 978 [2005], lvdenied 5 NY3d 769 [2005]; People v Miller, 291 AD2d 929, 929 [2002],lv denied 98 NY2d 712 [2002]). Indeed, we note that the victim, who had knowndefendant prior to the incident, unequivocally identified defendant as the assailant attrial.
We reject defendant's further contention that Supreme Court erred in denying hismotion to set aside the verdict on the ground of newly discovered evidence. Theevidence in question, i.e., that the victim used crack cocaine on the night of the incidentand had accused defendant of having a relationship with the victim's girlfriend, was notin fact newly discovered inasmuch as defendant allegedly learned of that evidence on theevening before summations and thus had an opportunity to use it before the case wassubmitted to the jury (see CPL 330.30 [3]; see generally People v White,272 AD2d 872, 872 [2000], lv denied 95 NY2d 859 [2000]). In any event, theevidence merely impeaches or contradicts the testimony of the victim, and defendantfailed to show that its admission would have created the probability of a more favorableverdict (see CPL 330.30 [3]; [*2]People vSalemi, 309 NY 208, 215-216 [1955], cert denied 350 US 950 [1956]).
We have reviewed defendant's contention in his pro se supplemental brief andconclude that it is without merit. It is well settled that defense counsel is not ineffectivefor failing to bring a motion that would have had little or no chance of success (see generally People v Caban,5 NY3d 143, 152 [2005]; People v Medaro, 277 AD2d 252, 253 [2000],lv denied 96 NY2d 803 [2001]). Present—Scudder, P.J., Centra, Lindley,Sconiers and Martoche, JJ.