| People v Jackson |
| 2016 NY Slip Op 04848 [140 AD3d 1771] |
| June 17, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRasheed Jackson, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.),rendered June 3, 2013. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree and reckless endangerment in thefirst 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 criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]) and reckless endangerment in the first degree(§ 120.25). We reject defendant's contention that the evidence is legallyinsufficient to support the conviction. "It is well settled that, even in circumstantialevidence cases, the standard for appellate review of legal sufficiency issues is whetherany valid line of reasoning and permissible inferences could lead a rational person to theconclusion reached by the fact finder on the basis of the evidence at trial, viewed in thelight most favorable to the People" (People v Moore [appeal No. 2], 78 AD3d1658, 1659 [2010] [internal quotation marks omitted]). Here, "the element of identitywas established by a compelling chain of circumstantial evidence that had no reasonableexplanation except that defendant was . . . [one of the shooters]" (People v Daniels, 125 AD3d1432, 1433 [2015], lv denied 25 NY3d 1071 [2015], reconsiderationdenied 26 NY3d 928 [2015]). We further conclude that, viewing the evidence inlight of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), the verdict is not against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]).
With respect to defendant's contention that he was deprived of effective assistance ofcounsel, we note at the outset that, so long as "the evidence, the law, and thecircumstances of a particular case, viewed in totality and as of the time of therepresentation, reveal that the attorney provided meaningful representation," counsel'sperformance will not be found ineffective (People v Baldi, 54 NY2d 137, 147[1981]). Applying that standard, we conclude that defendant's contention is withoutmerit. First, although counsel failed to request a circumstantial evidence charge, the court"otherwise properly instructed the jury with respect to the burden of proof" (People vTorturica [appeal No. 2], 23 AD3d 1040, 1041 [2005], lv denied 6 NY3d819 [2006]), and we conclude that the absence of a complete circumstantial evidencecharge "did not deprive defendant of a fair trial or affect the outcome" (People v Way, 115 AD3d558, 558-559 [2014], lv denied 24 NY3d 1048 [2014]). Second, defendantfailed to meet his burden of establishing that counsel was ineffective with respect to thecourt's suppression ruling covering certain identification evidence. In our view, counselmade every effort to suppress the identification evidence and, inasmuch as it eventuatedthat such evidence was not introduced at trial, we see no basis for faulting counsel'sperformance (see People vLott, 55 AD3d 1274, 1275 [2008], lv denied 11 NY3d 898 [2008],reconsideration denied 12 NY3d 760 [2009]).
Third, contrary to defendant's contention, defense counsel in fact challenged theintroduction in evidence at trial of defendant's grand jury testimony. In any event,"defendant's [*2]waiver of immunity before hisappearance in the [g]rand [j]ury contemplated the utilization of his testimony in any laterproceeding in which it became material" (People v Thomas, 300 AD2d 1034,1035 [2002], lv denied 99 NY2d 633 [2003] [internal quotation marks omitted]).Similarly, defendant's fourth and final ground for alleging ineffective assistance ofcounsel is belied by the record inasmuch as counsel objected to the prosecutor's use of aPowerPoint slide presentation on summation. In any event, we conclude that CountyCourt properly determined that the prosecutor's use of the slide presentation, as well asthe attendant commentary thereon, was "either a fair response to defense counsel'ssummation or fair comment on the evidence" (People v Lyon, 77 AD3d 1338, 1339 [2010], lvdenied 15 NY3d 954 [2010] [internal quotation marks omitted]; see People v Weaver, 118AD3d 1270, 1271 [2014], lv denied 24 NY3d 965 [2014]).
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P.,Carni, DeJoseph, Curran and Troutman, JJ.