| People v Perry |
| 2017 NY Slip Op 01597 [148 AD3d 1224] |
| March 2, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Andre T.Perry, Appellant. |
Donna C. Chin, Ithaca, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Jordan Yorke of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered June 23, 2014, upon a verdict convicting defendant of the crimes of criminal possessionof a controlled substance in the fifth degree and falsely reporting an incident in the thirddegree.
On June 23, 2013, defendant was arrested for falsely reporting an incident and, during asearch incident to his arrest, was found to be in possession of cocaine. Defendant was thereafterindicted on charges of criminal possession of a controlled substance in the fifth degree andfalsely reporting an incident in the third degree. Following a jury trial, at which defendanttestified, defendant was found guilty as charged and sentenced to an aggregate prison term ofthree years. Defendant now appeals, solely arguing that he received the ineffective assistance ofcounsel.
A defendant's right to the effective assistance of counsel is guaranteed by both the US andNY Constitutions (see US Const 6th Amend; NY Const, art I, § 6). Tosucceed on a claim of ineffective assistance of counsel under the US Constitution, a defendantmust demonstrate that the performance of his or her trial counsel "fell below an objectivestandard of reasonableness . . . under prevailing professional norms" and that thereis a "reasonable probability that, but for counsel's unprofessional errors, the result of theproceeding would have been different" (Strickland v Washington, 466 US 668, 688, 694[1984]; see People v Harris, 26NY3d 321, 328 [2015]; People vHernandez, 22 NY3d 972, 974-975 [2013], cert denied 572 US &mdash, 134 SCt 1900 [2014]). By comparison, to prevail on a claim of ineffective assistance of counsel underthe NY Constitution, a defendant must establish that he or she was not provided meaningful[*2]representation and that there is an "absence of strategic orother legitimate explanations" for counsel's allegedly deficient performance (People vRivera, 71 NY2d 705, 709 [1988]; see People v Caban, 5 NY3d 143, 152 [2005]; People vBenevento, 91 NY2d 708, 712 [1998]). If "the defense reflects a reasonable and legitimatestrategy under the circumstances and evidence presented, even if unsuccessful, it will not fall tothe level of ineffective assistance" (People v Benevento, 91 NY2d at 712-713; seePeople v Berroa, 99 NY2d 134, 138 [2002]).
Here, with respect to the charge of falsely reporting an incident, the People sought to provethat defendant, while acting in concert with another person, gratuitously reported to the arrestingpolice officer that he had been a passenger in a vehicle driven by his purported accomplice andthat the vehicle had been struck in a hit-and-run accident. To that end, the People relied, in largepart, on hearsay statements made by defendant's purported accomplice to the arresting officer.While defendant did not challenge the admissibility of these hearsay statements, as one mightexpect, it appears that his defense strategy was to attribute the false report solely to his purportedaccomplice and to deny that he participated or aided in any way. Defense counsel's opening andclosing statements, as well as his questions during cross-examinations and direct examinations,furthered this apparent strategy. As to defendant's defense of the possession charge, made moredifficult by the drugs having been found on his person, defendant appeared to have employed astrategy of contesting the credibility of the arresting officer so as to create reasonable doubt(see People v Johnson, 303 AD2d 830, 835 [2003], lvs denied 99 NY2d 655[2003], 100 NY2d 583 [2003]). However, defendant took the stand[FN*] and, although he countered portions of thearresting officer's account of events, he ultimately admitted to possessing the drugs. Thus, whilethe strategy advanced by defense counsel may not have been the best available, we cannot saythat it was unreasonable in light of the evidence and circumstances or completely devoid of merit(see People v Benevento, 91 NY2d at 712; People v Satterfield, 66 NY2d 796,799 [1985]; People v Baldi, 54 NY2d 137, 151-152 [1981]; People v Manchester, 123 AD3d1285, 1289 [2014], lv denied 26 NY3d 931 [2015]). As often recognized, "counsel'sefforts should not be second-guessed with the clarity of hindsight to determine how the defensemight have been more effective" (People v Benevento, 91 NY2d at 712; accord People v Thomas, 105 AD3d1068, 1071 [2013], lv denied 21 NY3d 1010 [2013]; see People v Rotger, 129 AD3d1330, 1331 [2015], lvs denied 26 NY3d 1011 [2015], 27 NY3d 1005 [2016]).
The record reveals that defense counsel engaged in appropriate pretrial motion practice,sought discovery materials from the District Attorney's office, made coherent opening andclosing statements aimed at furthering a particular defense strategy and contested the credibilityof the People's witnesses during cross-examinations. Despite the fact that defense counsel did notmake a single objection at trial, seek a curative instruction in response to County Court'sstatements regarding a defense witness or request any particular jury charge, we find that defensecounsel's representation, viewed in its totality, meets the threshold of meaningful (see Peoplev Baldi, 54 NY2d at 146-147; People v Ryan, 46 AD3d 1125, 1126-1127 [2007], lvdenied 10 NY3d 939 [2008]). Accordingly, defendant's claims of ineffective assistance ofcounsel fail [*3]under both the NY and US Constitutions (seegenerally People v Benevento, 91 NY2d at 712-713; Strickland v Washington, 466US at 687-688).
Garry, J.P., Egan Jr., Devine and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:The record does not reveal thecircumstances under which defendant decided to testify or the circumstances that prompteddefense counsel to state on the record, outside of the presence of the jury, that defendant was not"happy" with him. Issues that are outside the record must be raised in a CPL article 440 motion,rather than on direct appeal (see People v Brown, 45 NY2d 852, 853-854 [1978]; People v Surowka, 103 AD3d 985,986 [2013]).