| People v Witherspoon |
| 2017 NY Slip Op 01239 [147 AD3d 985] |
| February 15, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jerome Witherspoon, Appellant. |
Lynn W. L. Fahey, New York, NY (Joshua M. Levine of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Joseph N. Ferdenzi, and Jonathan K. Yi of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.),rendered November 20, 2013, convicting him of assault in the first degree, criminal possession ofa weapon in the second degree (two counts), assault in the second degree, and criminalpossession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction of assault inthe second degree, vacating the sentence imposed thereon, and dismissing that count of theindictment; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, the evidence, the law, and the circumstances of thiscase, viewed in totality and as of the time of the representation, reveal that trial counsel providedthe defendant with meaningful representation (see People v Benevento, 91 NY2d 708,712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]). The defendant was not deprivedof the effective assistance of counsel based upon trial counsel's failure to request a justificationcharge. Viewing the record in the light most favorable to the defendant, no reasonable view ofthe evidence would support a finding that his actions were justified (see Penal Law§ 35.15 [2]; People vAlbritton, 63 AD3d 749, 749 [2009]; People v Hayes, 51 AD3d 688, 688 [2008]; People vBarling, 269 AD2d 458, 458 [2000]). Moreover, trial counsel's failure to request furtherredactions to those portions of the complaint that were read to the jury did not amount toineffective assistance of counsel, since an attorney is not deemed ineffective for failing to pursuean argument that had little or no chance of success (see People v Ennis, 11 NY3d 403, 415 [2008]). Additionally,contrary to the defendant's contention, the complainant's testimony and a detective's testimonyabout the circumstances under which they discovered the perpetrator's nickname, and how thenickname led to the defendant's arrest, did not provide evidence from which the jury wouldinvariably conclude that the defendant had previously been convicted of a crime, and wasadmissible for the nonhearsay purpose of establishing the reasons behind the detective's actions,and to complete the narrative of events leading to the defendant's arrest (see People v Speaks, 124 AD3d689, 691 [2015], affd 28 NY3d 990 [2016]; People v Ragsdale, 68 AD3d 897 [2009]; People v Smalls,293 AD2d 500, 501 [2002]). While trial counsel should have requested a limiting instruction thatthis testimony should not be considered for its truth (see People v Negrin, 140 AD3d 1192, 1193 [2016]), this singleerror was not sufficiently egregious and prejudicial as to compromise the defendant's right to afair trial, and, thus, did not render counsel's performance ineffective (see People v Caban, 5 NY3d 143,152 [2005]; People v [*2]Mason, 119 AD3d 710, 711 [2014]; People v Lewis, 117 AD3d 751,752 [2014]).
The defendant's contention that the Supreme Court should have instructed the jury withregard to the defense of justification is unpreserved for appellate review (see CPL 470.05[2]; People v Harris, 48 AD3d830, 830 [2008]) and, in any event, without merit (see People v Kin Wong, 81 AD3d 421 [2011]; People v Moore, 66 AD3d 707,709-710 [2009], affd 15 NY3d 811 [2010]; People v Ojar, 38 AD3d 684, 685 [2007]; People v Castano,236 AD2d 215 [1997]; People v Pichardo, 168 AD2d 577, 578 [1990]).
However, as the People correctly concede, the defendant's conviction of assault in the seconddegree, and the sentence imposed thereon, must be vacated, and that count of the indictment mustbe dismissed, because that count is an inclusory concurrent count of the defendant's conviction ofassault in the first degree (see CPL 300.40 [3] [b]; People v Gaviria, 67 AD3d 701 [2009]). Leventhal, J.P., Roman,Sgroi and Connolly, JJ., concur.