| People v DiPippo |
| 2014 NY Slip Op 03856 [117 AD3d 1076] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Anthony DiPippo, Appellant. |
Brafman & Associates, P.C., New York, N.Y. (Benjamin Brafman, Mark M.Baker, and Jacob Kaplan of counsel), for appellant.
Adam B. Levy, District Attorney, Carmel, N.Y. (Heather M. Abissi of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Putnam County(Warhit, J.), rendered August 10, 2012, convicting him of murder in the second degreeand rape in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Prior to trial, the Supreme Court held a hearing on the defendant's motion tointroduce at trial certain evidence of alleged third-party culpability. Contrary to thedefendant's contention, under the circumstances of this case, the Supreme Courtprovidently exercised its discretion in denying his motion to introduce the profferedevidence (see People vSchulz, 4 NY3d 521, 528-529 [2005]; People v Primo, 96 NY2d 351[2001]; People v West, 86AD3d 583, 584-585 [2011]; People v Montanez, 78 AD3d 1198, 1199 [2010];People v Rodriguez, 295 AD2d 456 [2002]; People v Otero, 288 AD2d67, 67-68 [2001]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here,we are satisfied that the verdict of guilt as to murder in the second degree and rape in thefirst degree was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
Contrary to the defendant's contention, he was not deprived of a fair trial by theadmission of evidence that a defense investigator allegedly attempted to bribe aprosecution witness. Since the jury is presumed to have followed the trial court's promptinstruction that there was no evidence that the defendant authorized the attempted bribe,such testimony did not provide a basis for the drastic remedy of a mistrial (seegenerally People v Santiago, 52 NY2d 865, 866 [1981]; People v Leon, 98 AD3d1065 [2012]; People vThompson, 81 AD3d 670, 673 [2011]; People v Heath, 70 AD3d 857, 857 [2010]).
Defense counsel provided meaningful representation (see People v Baldi, 54NY2d 137, 146-147 [1981]). The failure of counsel to take certain actions did notconstitute ineffective assistance of counsel, as defense counsel could not have beenineffective for failing to advance motions or arguments that had no chance of success (see People v Caban, 5 NY3d143, 152 [2005]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions are unpreserved for appellate review, and inany event, without merit. Balkin, J.P., Dickerson, Leventhal and Roman, JJ., concur.