| People v Patterson |
| 2014 NY Slip Op 01853 [115 AD3d 1174] |
| March 21, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vChristian M. Patterson, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.),rendered April 11, 2012. The judgment convicted defendant, upon a jury verdict, ofaggravated murder, attempted aggravated murder (two counts), criminal possession of aweapon in the fourth degree and harassment in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of,inter alia, one count of aggravated murder (Penal Law § 125.26 [1] [a] [i]) and twocounts of attempted aggravated murder (§§ 110.00, 125.26 [1] [a] [i]),defendant contends that he was denied effective assistance of counsel based upon severalalleged failures of trial counsel. We reject defendant's contention.
This conviction arose from an incident spread over two dates, in which defendantshot and killed a deputy sheriff (hereafter, deputy). The evidence at trial, includingdefendant's trial testimony, establishes that the deputy responded after defendant'sneighbors called 911 and reported a domestic dispute regarding defendant and hisgirlfriend. The neighbors also told the 911 operator that defendant might be armed. Theevidence, again including defendant's testimony, establishes that the deputy parked hisvehicle in defendant's driveway and began to walk toward defendant's house. Before thedeputy said or did anything, defendant picked up a pump action shotgun and placed hisfinger on the trigger. A six-hour stalemate ensued, involving the deputy, defendant, andnumerous other members of several law enforcement agencies. Despite numerousrequests from the deputy and other law enforcement personnel at the scene to put downthe shotgun, defendant never removed his finger from the trigger. The incident came to aclimax when defendant moved to a less-visible part of his garage and began to put on ajacket. He released the trigger when he began to put his arm in the sleeve of the jacket.Two law enforcement agents quickly fired non-lethal projectiles at defendant, whichknocked him down and caused him to drop the shotgun. The deputy rushed into thegarage with a taser, in a further attempt to subdue defendant with non-lethal force.Before the deputy reached him, however, defendant picked up the shotgun and fired aslug that struck the deputy in the hand and neck, causing his death. The remaining lawenforcement officers shot defendant several times, which resulted in non-lethal injuries.As they were shooting at him, he worked the pump action of the [*2]shotgun two more times, firing the weapon at a lawenforcement agent each time.
The matter proceeded to trial, where the jury rejected the defense that defendant wasunder the influence of an extreme emotional disturbance.
Defendant contends that his attorney was ineffective in failing to move to suppressevidence unlawfully seized from him by the law enforcement personnel at the scene inthe absence of a warrant or probable cause to arrest him. We reject that contention. It iswell settled that "a showing that [defense] counsel failed to make a particular pretrialmotion generally does not, by itself, establish ineffective assistance of counsel"(People v Rivera, 71 NY2d 705, 709 [1988]; see People v Biro, 85 AD3d 1570, 1571 [2011]; see also People v Webster, 56AD3d 1242, 1242-1243 [2008], lv denied 11 NY3d 931 [2009]), and it isequally well settled that, in order "[t]o prevail on a claim of ineffective assistance ofcounsel, it is incumbent on defendant to demonstrate the absence of strategic or otherlegitimate explanations for counsel's failure to request a particular hearing. Absent such ashowing, it will be presumed that counsel acted in a competent manner and exercisedprofessional judgment in not pursuing a hearing" (Rivera, 71 NY2d at 709).Furthermore, "[t]here can be no denial of effective assistance of . . . counselarising from [defense] counsel's failure to 'make a motion or argument that has little or nochance of success' " (People vCaban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004], rearg denied3 NY3d 702 [2004]; seePeople v Watson, 90 AD3d 1666, 1667 [2011], lv denied 19 NY3d 868[2012]; People v McGee,87 AD3d 1400, 1403 [2011], affd 20 NY3d 513 [2013]). Here, defendantfailed to demonstrate the absence of legitimate explanations for defense counsel's failureto make a suppression motion, or that the " 'motion, if made, would have been successfuland that defense counsel's failure to make that motion deprived him of meaningfulrepresentation' " (People vBassett, 55 AD3d 1434, 1437-1438 [2008], lv denied 11 NY3d 922[2009]; see People vBedell, 114 AD3d 1153, 1153 [2014] cf. People v Carnevale, 101 AD3d 1375, 1378-1381[2012]).
Defendant's further contention that his attorney failed to provide effective assistanceof counsel by failing to pursue a justification defense and to request a justification chargeis also without merit. Contrary to defendant's contention, there is no reasonable view ofthe evidence that would permit defense counsel to pursue such a defense, and thus such acharge would not be appropriate (see generally Caban, 5 NY3d at 152). Withrespect to defendant's contention that he was entitled to use deadly force to prevent hisarrest, it is well settled that "defendant was not entitled to use any physical forceto resist an arrest by a police officer who reasonably appeared to be [such an officer]"(People v Degondea, 269 AD2d 243, 245 [2000], lv denied 95 NY2d834 [2000]; see People v Douglas, 160 AD2d 1015, 1016 [1990], lv denied76 NY2d 855 [1990]), much less deadly physical force. There is no reasonable viewof the evidence supporting defendant's further contention that the deputy and the otherlaw enforcement agents were committing a burglary that would justify defendant's use ofdeadly force pursuant to Penal Law § 35.20 (3). Similarly, his contention that hewas justified in using deadly physical force pursuant to section 35.15 is without meritbecause "the justification defense would not be available [where, as here,] defendant was'the initial aggressor' " (People vWatson, 20 NY3d 1018, 1020 [2013], quoting § 35.15 [1] [b]).
We have reviewed defendant's further contentions regarding defense counsel's otheralleged shortcomings and, viewing the evidence, the law and the circumstances of thiscase in totality and as of the time of representation, we conclude that defendant receivedeffective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147[1981]).
We reject defendant's further contention that the court erred in failing to instruct thejury, sua sponte, on the defense of justification. Even assuming, arguendo, that such aninstruction was supported by the evidence, we conclude that the "court did not err inrefraining from delivering such a charge sua sponte, as this would have improperlyinterfered with defense [*3]counsel's strategy" (People v Poston, 95 AD3d729, 730 [2012], lv denied 19 NY3d 1104 [2012]).
Finally, viewing the evidence in light of the elements of the crimes as charged to thejury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Present—Smith, J.P., Peradotto, Lindley, Valentino and Whalen, JJ.