| People v Shuaib |
| 2013 NY Slip Op 07766 [111 AD3d 1055] |
| November 21, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vDhoruba Shuaib, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Lahtinen, J.P. Appeals (1) from a judgment of the Supreme Court (Lamont, J.),rendered March 15, 2012 in Albany County, upon a verdict convicting defendant of thecrime of manslaughter in the first degree, and (2) by permission, from a corrected orderof the County Court of Albany County (Lynch, J.), entered March 8, 2013, which denieddefendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
In April 2011, defendant and codefendant, Jah-lah Vanderhorst, were at HoffmanPark in the City of Albany. Vanderhorst engaged in a fight with the victim, which waswitnessed by numerous individuals and video-recorded by one bystander on his cellphone. During the fight, Vanderhorst stabbed the victim in the chest causing the victim'sdeath. Based on his alleged role of providing Vanderhorst with a knife during the fightand restricting the victim's movements, defendant was jointly indicted with Vanderhorston one count of murder in the second degree. Defendant's trial was severed from that ofVanderhorst and, although the jury acquitted defendant of murder in the second degree,he was convicted of the lesser included offense of manslaughter in the first degree.Supreme Court (Lamont, J.) sentenced defendant to 21 years in prison and five years ofpostrelease supervision. He subsequently moved to vacate the judgment of conviction onthe ground of ineffective assistance of counsel, which County Court (Lynch, J.) deniedwithout a hearing. Defendant appeals from the judgment of conviction and, by [*2]permission, the denial of his CPL 440.10 motion.
Defendant contends that the verdict was against the weight of the evidence. Where,as here, a different verdict would not have been unreasonable, we "must, like the trier offact below, weigh the relative probative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn from the testimony" (People v Romero, 7 NY3d633, 643 [2006] [internal quotation marks and citations omitted]; see People v Danielson, 9NY3d 342, 348 [2007]; People v Molina, 79 AD3d 1371, 1375 [2010], lvdenied 16 NY3d 861 [2011]). We are, however, "careful not to substitute [our]selvesfor the jury" as "[g]reat deference is accorded to the fact-finder's opportunity to view thewitnesses, hear the testimony and observe demeanor" (People v Bleakley, 69NY2d 490, 495 [1987]; see People v Romero, 7 NY3d at 644; People v Tinkler, 105 AD3d1140, 1141 [2013], lv denied 21 NY3d 1020 [2013]).
Witnesses at trial included many individuals who were present in Hoffman Parkwhen the fight and stabbing occurred. The video of the incident was received in evidenceand viewed by the jury. Defendant testified in his defense. The proof established thatVanderhorst, who was defendant's friend, and the victim had an ongoing feud. The fightlasted a couple of minutes and Vanderhorst remained the aggressor. The victim, althoughbigger, repeatedly retreated and urged Vanderhorst to put away his knife. The victim'sretreat resulted in the fight moving about in the park and defendant circled around thevictim, making retreat more difficult. At one point, Vanderhorst threw a bicycle at thevictim. There was testimony that he handed his knife to defendant in order to pick up andthrow the bicycle. Immediately thereafter, Vanderhorst is depicted in the video going todefendant and an apparent exchange took place, which witnesses stated was whendefendant returned the knife to Vanderhorst.
One witness urged Vanherhorst to disarm and she recalled defendant indicating thatthey were going to get the victim. As the victim went around a park bench pursued byVanderhorst wielding the knife, the video shows defendant attempting to trip the victimfrom behind. The victim retreated to an area where a fence partially blocked his retreatand, as Vanderhorst closed in with the knife, defendant stepped immediately behind thevictim in a blocking fashion hindering any further retreat. At the same moment,Vanderhorst lunged forward inflicting the fatal blow.
The testimony of the witnesses—many of whom were young teenagersobserving disturbing events unfold—was not without inconsistencies. Thewitnesses' testimony, however, considered in conjunction with the video, establisheddefendant's significant involvement in the crime. The explanations offered by defendantin his testimony as to the events created credibility issues for the jury. Giving deferenceto those credibility determinations, and after weighing the proof in the record, we findthat the weight of the evidence supports the jury's verdict finding defendant's accessorialculpability in committing manslaughter in the first degree.
Defendant argues that he did not receive the effective assistance of counsel. We areunpersuaded. "The Constitution guarantees a defendant a fair trial, not a perfect one[and] [i]solated errors in counsel's representation generally will not rise to the level ofineffectiveness, unless the error is so serious that defendant did not receive a fair trial"(People v Henry, 95 NY2d 563, 565-566 [2000] [internal quotation marks andcitations omitted]; see People v Benevento, 91 NY2d 708, 712-713 [1998]). "Solong as the evidence, the law, and the circumstances of a particular case, viewed intotality and as of the time of the representation, reveal that the attorney providedmeaningful representation, the constitutional requirement will have been met"(People v [*3]Baldi, 54 NY2d 137, 146-147[1981] [citations omitted]; accord People v Oathout, 21 NY3d 127, 128 [2013]).Defendant urges in his CPL 440.10 motion that counsel failed to closely view the videoof the incident and also did not give him ample opportunity to do so. However, defendantviewed it several times before testifying and, in light of his position that he neverphysically touched the victim during the incident, counsel was not ineffective in failingto view the entire video frame-by-frame so as to ensure that such contact was not shownat any place therein. The remaining asserted deficiencies of counsel, including failing tomake certain objections at trial, do not rise to the level of ineffectiveness. Review of therecord reveals that counsel not only obtained acquittal on the murder charge, but also"made appropriate motions, set forth a cogent defense theory, interjected viableobjections, conducted meaningful cross-examination, gave an effective summation andotherwise presented a zealous defense" (People v Bush, 107 AD3d 1302, 1303 [2013]; see People v Kenyon, 108AD3d 933, 940 [2013], lv denied 21 NY3d 1075 [2013]; People v Ariosa, 100 AD3d1264, 1266 [2012], lv denied 21 NY3d 1013 [2013]).
The remaining arguments do not require extended discussion. We are unpersuadedthat the People pursued theories outside the scope of the indictment as amplified by thebill of particulars regarding defendant's accessorial culpability, and Supreme Court'scharge on such issue, which followed the pattern jury instruction, did not constitutereversible error (see People vRobinson, 53 AD3d 681, 683-684 [2008], lv denied 11 NY3d 794[2008]; see also People vRebollo, 107 AD3d 1059, 1061-1062 [2013]). Defendant's contention that hewas unduly prejudiced by the admission into evidence of two 911 calls made byindividuals at the scene (both of whom also testified at trial) was not preserved by atimely objection and, in any event, the recordings did not unfairly prejudice defendantunder the circumstances of this case (see generally People v Scarola, 71 NY2d769, 777 [1988]; People vHarris, 99 AD3d 608, 608-609 [2012], lv denied 21 NY3d 1004[2013]). Although defendant had no criminal record and expressed remorse, we findunavailing his argument regarding the sentence. He received less than the maximumsentence and Supreme Court did not abuse its discretion in sentencing nor are thereextraordinary circumstances warranting a reduction in the interest of justice (see People v Hartman, 86AD3d 711, 713 [2011], lv denied 18 NY3d 859 [2011]; People v Duffy, 38 AD3d1060, 1060-1061 [2007]).
McCarthy, Spain and Egan Jr., JJ., concur. Ordered that the judgment and correctedorder are affirmed.