| People v Davis |
| 2013 NY Slip Op 07318 [111 AD3d 1302] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v GlenDavis, Also Known as Thomas Davis, Appellant. |
—[*1] Glen Davis, defendant-appellant pro se. Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered March 4, 2009. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree and criminal possession of a weapon in the third 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 murder in the second degree (Penal Law § 125.25 [1]) and criminalpossession of a weapon in the third degree (§ 265.02 [former (4)]). Viewing theevidence in light of the elements of murder in the second degree as charged to the jury(see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence with respect to that crime (see generally People v Bleakley, 69 NY2d490, 495 [1987]). "[R]esolution of issues of credibility, as well as the weight to beaccorded to the evidence presented, are primarily questions to be determined by the jury"(People v Witherspoon, 66AD3d 1456, 1457 [2009], lv denied 13 NY3d 942 [2010] [internal quotationmarks omitted]). Defendant's further contention that County Court erred in failing tocharge the jury on justification with respect to ordinary physical force, as opposed todeadly physical force, is not preserved for our review (see People v Carr, 59 AD3d945, 946 [2009], affd 14 NY3d 808 [2010]; People v Johnson, 103 AD3d1226, 1226 [2013], lv denied 21 NY3d 944 [2013]). In any event, thatcontention lacks merit. Inasmuch as "the charge against defendant required proof of hisuse of deadly physical force, the court properly instructed the jury on deadly physicalforce as part of defendant's justification defense" (People v Davis, 118 AD2d206, 210 [1986], lv denied 68 NY2d 768 [1986]). Contrary to the contention ofdefendant in his pro se supplemental brief, defense counsel was not ineffective in failingto seek an instruction with respect to ordinary physical force because an attorney's"failure to 'make a motion or argument that has little or no chance of success' " does notamount to ineffective assistance (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d277, 287 [2004], rearg denied 3 NY3d 702 [2004]; see Johnson, 103AD3d at 1226).
Defendant's remaining contentions are in his main brief and concern the court's [*2]preclusionary rulings. None of those contentions requiresreversal or modification of the judgment of conviction.
First, defendant contends that the court erred in precluding defendant from testifyingthat over one month before the murder he and the victim had an exchange in which thevictim asked defendant why defendant was "clocking," i.e., watching, the victim.Although defendant contends that such statement could be considered a threat, weconclude that "[i]t was within the court's discretion to preclude [that testimony] as toospeculative or conjectural to be presented to the jury" (People v Parks, 85 AD3d557, 557-558 [2011], lv denied 17 NY3d 904 [2011]).
Second, defendant contends that he was thwarted in his efforts to explain his fear ofthe victim when the court refused to allow him to testify as to what two associates of thevictim had told defendant about leaving the apartment building in which defendantresided. Even assuming, arguendo, that defendant preserved his contention for ourreview, we conclude that any error in precluding defendant from testifying on this pointis harmless (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).We note in particular that "the precluded testimony was essentially cumulative of otherevidence presented at trial" and that "defendant was provided a meaningful opportunityto present a complete defense" (People v Ramsey, 59 AD3d 1046, 1048 [2009], lvdenied 12 NY3d 858 [2009] [internal quotation marks omitted]). Here, defendanttestified that a competing drug dealer known to defendant had been shot by the victim,that the victim and associates of the victim had severely beaten defendant, and that thevictim had frightened defendant and defendant's girlfriend into moving from theapartment building in which they resided.
Third, defendant contends that the court erred in refusing to allow him to explain hisstate of mind in returning to the apartment building from which he had previously movedon the day of the shooting. The court did not in fact preclude such testimony, however,inasmuch as the court permitted defendant to testify that he did not anticipate thepresence of the victim or the victim's associates on the morning of the shooting.Present—Scudder, P.J., Smith, Fahey, Sconiers and Valentino, JJ.