| People v Rotger |
| 2015 NY Slip Op 05228 [129 AD3d 1330] |
| June 18, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJack Rotger, Appellant. |
Donna C. Chin, Ithaca, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Veronica M. Krause of counsel),for respondent.
Lynch, J. Appeal from a judgment of the County Court of Broome County (Smith,J.), rendered November 5, 2012, upon a verdict convicting defendant of the crimes ofburglary in the first degree, robbery in the first degree, burglary in the second degree,robbery in the second degree and petit larceny (two counts).
Defendant was charged in a 15-count indictment with crimes stemming from arobbery that occurred in the City of Binghamton, Broome County in December 2010.After defendant originally pleaded guilty to robbery in the second degree in satisfactionof all charges in exchange for a sentence of eight years in prison and five years ofpostrelease supervision, County Court later vacated the plea upon defendant's motion andwith the People's consent. Following a jury trial, defendant was found guilty of thecrimes of burglary in the first degree, robbery in the first degree, burglary in the seconddegree, robbery in the second degree and two counts of petit larceny. County Courtsentenced defendant, as a persistent violent felony offender, to a prison term of 20 yearsto life. Defendant now appeals, and we affirm.
Defendant's primary claim on this appeal is that he was denied the effectiveassistance of counsel. In order to establish such a claim, a defendant must demonstratethat his or her attorney "failed to provide meaningful representation" (People v Caban, 5 NY3d143, 152 [2005]). We are obligated to consider whether the defendant receivedmeaningful representation in light of " 'the evidence, the law, and thecircumstances of a particular case, viewed in totality [*2]and as of the time of the representation' "(People v Benevento, 91 NY2d 708, 712 [1998], quoting People v Baldi,54 NY2d 137, 147 [1981]). Further, we must distinguish " 'actual ineffectivenesswith mere losing tactics, and a defendant must demonstrate the absence of strategic orreasonable explanations for counsel's alleged shortcomings' " (People v Griffin, 122 AD3d1068, 1070 [2014], quoting People v McCloud, 121 AD3d 1286, 1291 [2014]). Wemay not second-guess counsel's efforts "with the clarity of hindsight to determine howthe defense might have been more effective" (People v Benevento, 91 NY2d at712). Fundamentally, the NY Constitution guarantees a defendant "a fair trial, notnecessarily a perfect one" (People v Cummings, 16 NY3d 784, 785 [2011] [internalquotation marks and citation omitted], cert denied 565 US &mdash, 132 S Ct 203[2011]).
In support of his ineffective assistance argument, defendant identifies four specificmistakes that he believes counsel made during the course of the proceedings. First,defendant contends that counsel should have sought to dismiss the indictment based ondelay and because defendant did not receive notice of the grand jury proceedings.Defendant also contends that counsel should have requested a pretrial Wadehearing and that, during the trial, he failed to offer into evidence certain prior,inconsistent written statements by the victim. Finally, defendant claims that counsel wasineffective because he did not object to defendant's designation as a persistent violentfelony offender at sentencing.
Based on our review of the record, we discern no basis for defendant's claims that hereceived ineffective assistance of counsel. Generally, "[t]here can be no denial ofeffective assistance of trial counsel arising from counsel's failure to 'make a motion orargument that has little or no chance of success' " (People v Caban, 5NY3d at 152, quoting People vStultz, 2 NY3d 277, 287 [2004]; see People v Clarke, 110 AD3d 1341, 1345 [2013], lvdenied 22 NY3d 1197 [2014]). Here, with regard to the grand jury proceedings, therecord confirms that when the charges were submitted, defendant was not being heldafter arraignment on any of the charges that were the subject of the proceedings.Accordingly, defendant was not entitled to notice, and there was no basis for a motion todismiss the indictment on such ground (see CPL 190.50 [5] [a]; People vPonce, 276 AD2d 921, 921-922 [2000], lv denied 96 NY2d 786 [2001];People v Hernandez, 210 AD2d 535, 537 [1994], lv denied 84 NY2d1032 [1995]). Further, inasmuch as only slightly more than five months elapsed betweenthe crimes and the indictment, we reject defendant's argument that counsel's failure tomove to dismiss based on preindictment delay constituted ineffective assistance ofcounsel (see People vWilliamson, 77 AD3d 1183, 1185 [2010]; People v Medina, 262 AD2d708, 710 [1999], lv denied 93 NY2d 1023 [1999]).
The record also evinces a reasonable explanation for counsel's determination to notrequest a Wade hearing, the purpose of which would have been to insure that thevictim's identification of defendant was not improperly influenced by police suggestion(see People v Dixon, 85 NY2d 218, 224 [1995]). The victim testified at trial thattwo men entered his home, one was masked and defendant was not. At the time, thevictim recognized the masked intruder's voice, but did not "know [defendant] from a holein the wall." He later identified defendant after encountering him while both were inlocal custody. As the victim identified defendant spontaneously and without policeinvolvement, there was no basis to request a Wade hearing (see People v Robinson, 121AD3d 1405, 1406 [2014], lv denied 24 NY3d 1221 [2015]; People v Smith, 118 AD3d1492 [2014], lv denied 25 NY3d 953 [2015]).
As for the victim's prior inconsistent statements, the record indicates that the victimwrote two letters while in custody wherein he recanted his identification of defendant.Generally, a witness may be questioned with regard to a prior inconsistent statement as ameans to impugn his or her credibility, but "this testimony is often collateral to theultimate issue before the jury" (People v Duncan, 46 NY2d 74, 80 [1978], certdenied 442 US 910 [1979]). On cross-examination, defense counsel questioned thevictim about the letters and fully explored their content and inconsistencies. Sincecounsel took effective steps to discredit the witness and ensure that the jury heard the fullcontent of the exculpatory prior statements, we discern no basis for this claim ofineffective assistance of counsel (see People v Bahr, 96 AD3d 1165, 1167 [2012], lvdenied 19 NY3d 1024 [2012]).
With respect to defendant's designation as a persistent violent felony offender(see Penal Law § 70.08 [1] [a]), the record reveals that, atsentencing, the People presented a persistent violent felony offender statement to CountyCourt and defendant's counsel (see generally CPL 400.15). After the courtreviewed the prior convictions and sentences set forth in the statement, defendantconfirmed that he agreed with each. Now, although he claims that the statement istechnically deficient, he does not claim that the admissions that he made duringsentencing were incorrect.[FN*] As such, we find no basis fordefendant's contention that counsel was ineffective for not challenging the designation(see People v Bassett, 36AD3d 968, 969 [2007]).
Finally, we reject defendant's claim that the sentence imposed was unduly harsh andexcessive. He identifies no basis for his claim that he was penalized for exercising hisright to trial (see People vSouffrant, 93 AD3d 885, 887 [2012], lv denied 19 NY3d 968 [2012]).Rather, although the People had previously offered an eight-year sentence in exchangefor his plea, it is not disputed that the offer and plea was premised on the mistaken beliefthat defendant could be sentenced as a second violent felony offender (see PenalLaw § 70.04; People v Baker, 287 AD2d 726, 727 [2001], lvdenied 98 NY2d 708 [2002]). Further, we discern no constitutional violation inCounty Court's determination to sentence defendant at the lower end of the rangepermitted by the statute in effect at the time of sentencing and to date (see PenalLaw § 70.08 [2], [3] [a-1]). In light of defendant's lengthy criminal record,we are unable to conclude that the sentence was so harsh or excessive as to warrant areduction in the interest of justice (see People v Toye, 107 AD3d 1149, 1152 [2013], lvdenied 22 NY3d 1091 [2014]; People v Pope, 96 AD3d 1231, 1235 [2012], lvdenied 20 NY3d 1064 [2013]).
We have considered defendant's remaining arguments and find them to be withoutmerit.
McCarthy, J.P., Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Specifically, at the timeof sentencing, defendant admitted to all of the prior convictions and sentences set forth inthe People's persistent violent felony offender statement, including previous convictionsfor robbery in 1990 and attempted manslaughter in the first degree in 2002, and custodialtime in excess of 13 years since 1990.