| People v Prescott |
| 2015 NY Slip Op 01048 [125 AD3d 1332] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTyrone Prescott, Appellant. |
Kathryn Friedman, Buffalo, for defendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia,A.J.), rendered March 7, 2005, which was affirmed by memorandum and order of thisCourt dated October 2, 2009 (66 AD3d 1357 [2009]). By order entered September 30,2011 (87 AD3d 1413), this Court denied defendant's application for a writ of error coramnobis to vacate, on the ground of ineffective assistance of appellate counsel, thememorandum and order of this Court dated October 2, 2009. In an order dated May 7,2013, the Court of Appeals reversed the order of this Court dated September 30, 2011,granted defendant's application for a writ of error coram nobis, vacated the memorandumand order of this Court dated October 2, 2009 and remitted the matter to this Court for ade novo determination (21 NY3d 925 [2013]).
Now, upon remittitur from the Court of Appeals,
It is hereby ordered that, upon remittitur from the Court of Appeals, the judgment soappealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjuryverdict of gang assault in the first degree (Penal Law § 120.07) and assaultin the first degree (§ 120.10 [1]). We reject defendant's contention that hereceived ineffective assistance of counsel. Defendant has failed to demonstrate" 'the absence of strategic or other legitimate explanations' " for thedecisions of defense counsel to permit defendant to waive his right to a jury trial (People v Caban, 5 NY3d143, 152 [2005]; see People v Boateng, 246 AD2d 749, 749-750 [1998],lv denied 91 NY2d 970 [1998]), and not to allow him to testify (see People v Collins, 85 AD3d1678, 1679 [2011], lv denied 18 NY3d 993 [2012]). Defense counsel wasnot ineffective in failing to object to Supreme Court's decision to have defendant remainin handcuffs throughout the trial. The court stated the reasons for its decision (see People v Best, 19 NY3d739, 743-744 [2012]; People v Tucker, 261 AD2d 877, 878 [1999], lvdenied 94 NY2d 830 [1999]), and we conclude that any objection by defense counselwould have had little or no chance of success (see People v Gilpatrick, 63 AD3d 1636, 1637 [2009], lvdenied 13 NY3d 835 [2009]). Defense counsel was not ineffective for failing to callan expert witness to testify regarding the lack of blood found on defendant." 'Defendant has not demonstrated that such testimony was available, that itwould have assisted the [court] in its determination or that he was prejudiced by itsabsence' " (People vKilbury, 83 AD3d 1579, 1580 [2011], lv denied 17 NY3d 860 [2011];see People v Feeley, 23AD3d 1130, 1130-1131 [2005], lv denied 6 NY3d 775 [2006]). Viewing theevidence, the law and the circumstances of this case in totality and as of the time of therepresentation, we conclude that defense counsel provided meaningful representation(see generally People v Baldi, 54 NY2d 137, 147 [1981]). The sentence is notunduly harsh or severe. Present—Scudder, P.J., Smith, Centra, Lindley andValentino, JJ.