| People v Henley |
| 2016 NY Slip Op 08729 [145 AD3d 1578] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vWillie Henley, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Benjamin L. Nelson of counsel), fordefendant-appellant.
Willie Henley, defendant-appellant pro se.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Daniel J. Punch ofcounsel), for respondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered October 2, 2014. The judgment convicted defendant, upon a jury verdict, ofassault in the first 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 assault in the first degree (Penal Law § 120.10 [1]). In March2013, defendant stabbed his mother's boyfriend several times with a knife, causinginjuries that included a potentially fatal laceration to his heart. The police weredispatched to the home of defendant's grandmother, where the stabbing had occurred,and an officer found defendant hiding in the basement. A show-up identification wasconducted, and the victim positively identified defendant as the man who had stabbedhim. Defendant was transported to the police station and placed in an interview room.Another officer entered the room, at which time defendant made a spontaneousstatement, i.e., that "a guy ran in, stabbed him and ran out." Defendant refused to give awritten statement to the police. At trial, the victim testified that defendant had stabbedhim twice, said "I am tired of you and my mother talking about me at night," and thencontinued stabbing him. Defendant testified that he had acted in self-defense, stabbingthe victim only after the victim had attacked him with a barbecue fork. Both defendantand the victim gave sharply differing accounts of the fight, to which there were no otherwitnesses. Nonetheless, viewing the evidence in light of the elements of the crime ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). The jury was entitled to resolve issues of credibility in favor of the People, andwe see no reason to disturb the jury's resolution of such issues (see People v Stevens, 109AD3d 1204, 1205 [2013], lv denied 23 NY3d 1043 [2014]).
Defendant failed to preserve for our review his contention that several instances ofprosecutorial misconduct deprived him of a fair trial (see generally People v Johnson, 133 AD3d 1309, 1311[2015], lv denied 27 NY3d 1000 [2016]). In any event, that contention lacksmerit. In particular, we conclude that defendant opened the door to the People's evidenceof his silence by eliciting extensive testimony from the People's witnesses with respectthereto, and arguing in effect that his silence was more consistent with his innocence thanhis guilt (see People vBrown, 135 AD3d 495, 496 [2016], lv denied 27 NY3d 993 [2016]; People v McCall, 75 AD3d999, 1001 [2010], lv denied 15 NY3d 894 [2010]; see also People vNunez, 253 AD2d 685, 686 [1998], lv denied 92 NY2d 984 [1998]; see generally People v Pavone,26 NY3d 629, 640-641 [2015]; People v Williams, 25 NY3d 185, 190-191 [2015]). Inaddition, we conclude that the prosecutor's remarks with respect to the relative amountsof blood on the clothing of defendant and the victim were fair comment on the evidence(see People v Rivera, 133AD3d 1255, 1256 [2015], lv denied 27 NY3d 1154 [2016]).
We reject defendant's further contention that he was denied effective assistance ofcounsel. It is well settled that "[t]here can be no denial of effective assistance of trialcounsel arising from counsel's failure to 'make a motion or argument that has little or nochance of success' " (People v Caban, 5 NY3d 143, 152 [2005]; see People v Faison, 113 AD3d1135, 1136 [2014], lv denied 23 NY3d 1036 [2014]). With respect to thealleged instances of prosecutorial misconduct, inasmuch as they did not deprivedefendant of a fair trial, defense counsel was not ineffective for failing to object thereto(see People v Lewis, 140AD3d 1593, 1595 [2016]). Furthermore, counsel was not ineffective for failing torequest a lesser included charge of assault in the second degree, based on recklessness(Penal Law § 120.05 [4]). In light of defendant's testimony that heintentionally stabbed the victim in self-defense, there was no reasonable view of theevidence that would support a finding that defendant acted recklessly in stabbing thevictim (see People v Horn, 152 AD2d 925, 925 [1989], lv denied 74NY2d 897 [1989]), and thus an application to charge the jury with reckless assault as alesser included offense would have had " 'little or no chance of success' "(Caban, 5 NY3d at 152).
We agree with defendant that he was denied his right to counsel when County Courtpermitted him to decide, himself, whether to request the lesser included charge. "It is wellestablished that a defendant, 'having accepted the assistance of counsel, retains authorityonly over certain fundamental decisions regarding the case' such as 'whether to pleadguilty, waive a jury trial, testify in his or her own behalf or take an appeal' "(People v Colon, 90 NY2d 824, 825-826 [1997]; see People v McKenzie, 142AD3d 1279, 1280 [2016]). On the other hand, defense counsel has ultimatedecision-making authority over matters of strategy and trial tactics, such as whether toseek a jury charge on a lesser included offense (see People v Colville, 20 NY3d 20, 23 [2012]; People v Gottsche, 118 AD3d1303, 1303 [2014], lv denied 24 NY3d 1084 [2014]). Here, the court "madeplain that [it] would be guided solely by defendant's choice in the matter, despite thedefense attorney's clearly stated views and advice to the contrary," and thus the court"denied [defendant] the expert judgment of counsel to which the Sixth Amendmententitles him" (Colville, 20 NY3d at 32). We nonetheless conclude that the error isharmless in light of the testimony of defendant that he intentionally stabbed the victim(see People v Butler, 140AD3d 472, 473 [2016]).
In his pro se supplemental brief, defendant contends that the court erred in permittingthe prosecutor to exercise a peremptory challenge to exclude a prospective juror based onrace. We reject that contention "inasmuch as the prosecutor clearly provided arace-neutral basis for the challenge" (People v Morris, 138 AD3d 1408, 1409 [2016], lvdenied 27 NY3d 1136 [2016]), i.e., a police officer wrongfully had accused theprospective juror of an assault in the past, and she was tried on that charge, whichultimately was dismissed.
Finally, the sentence is not unduly harsh or severe. Present—Centra, J.P.,Carni, NeMoyer, Curran and Troutman, JJ.