| People v Elian |
| 2015 NY Slip Op 05340 [129 AD3d 1635] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vNixon Elian, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.),rendered January 6, 2011. The judgment convicted defendant, upon a jury verdict, ofattempted aggravated murder (two counts), assault in the first degree (two counts),attempted robbery in the first degree, burglary in the first degree, criminal possession of aweapon in the second degree, assault in the second degree and criminal possession ofstolen property in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, two counts of attempted aggravated murder (Penal Law§§ 110.00, 125.26 [1] [a] [i]; [b]). We reject defendant's contentionthat he was denied effective assistance of counsel based on defense counsel's failure torequest that Supreme Court charge attempted assault in the second degree(§§ 110.00, 120.05 [1]) as a lesser included offense of those twocounts of the indictment. "It is well settled that '[a] defendant is not denied effectiveassistance of trial counsel [where defense] counsel does not make . . . a[n]argument that has little or no chance of success' " (People v March, 89 AD3d1496, 1497 [2011], lv denied 18 NY3d 926 [2012], quoting People v Stultz, 2 NY3d277, 287 [2004], rearg denied 3 NY3d 702 [2004]). Viewing the evidence inthe light most favorable to defendant (see People v Martin, 59 NY2d 704, 705[1983]), we conclude that there is no reasonable view thereof to support a finding thatdefendant committed the lesser offense but not the greater (see generally People vGlover, 57 NY2d 61, 63 [1982]). We reject defendant's further contention that hewas denied effective assistance of counsel based on defense counsel's failure to object tocomments made by the prosecutor in his opening statement and on summation (see People v Cox, 21 AD3d1361, 1364 [2005], lv denied 6 NY3d 753 [2005]).
Defendant failed to preserve for our review his further contention that he wasdeprived of a fair trial by the admission in evidence of defendant's recorded statement inwhich he referenced an uncharged act of domestic violence. After defendant objected onthe basis of a Molineux violation, the court gave curative instructions to the jury.Following those instructions, defense counsel neither objected further nor requested amistrial, and thus, " '[u]nder these circumstances, the curative instructions mustbe deemed to have corrected the error to the defendant's satisfaction' " (People v Lane, 106 AD3d1478, 1480-1481 [2013], lv denied 21 NY3d 1043 [2013], quotingPeople v Heide, 84 NY2d 943, 944 [1994]). We decline to exercise our power toreview defendant's contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Present—Scudder, P.J., Carni, Sconiers, Valentino andWhalen, JJ.