| People v Olsen |
| 2017 NY Slip Op 01716 [148 AD3d 829] |
| March 8, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v James Olsen, Appellant. |
Leslie W. Rubin, Floral Park, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Donald Berk and W. Thomas Hughes ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Delligatti,J.), rendered December 1, 2014, convicting him of murder in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court was not required to obtain fromhim an affirmative waiver of the affirmative defense of extreme emotional disturbance (seePeople v Harris, 109 AD2d 351 [1985]).
Furthermore, reduction of the defendant's conviction to manslaughter based upon theapplication of the affirmative defense of extreme emotional disturbance is not warranted. Thedefendant contended at trial that his act in strangling the victim to death was the result of mentaldisease or defect. He chose not to pursue the affirmative defense of extreme emotionaldisturbance which, if successfully established, would have permitted the jury to find him guiltyof manslaughter. On appeal, he asks this Court to apply the extreme emotional disturbanceaffirmative defense and reduce his conviction. However, we decline to provide him with asecond opportunity to present an affirmative defense which he earlier rejected for strategicpurposes (see People v Vineski, 162 AD2d 484 [1990]). Additionally, we decline toreverse his conviction in the interest of justice (see generally People v Gioeli, 288 AD2d488 [2001]).
The defendant's contention that he was deprived of the effective assistance of counsel iswithout merit. "[W]hen reviewing claims of ineffective assistance of counsel, care must be takento avoid confusing true ineffectiveness with mere losing tactics. The performance of counselmust be viewed without the benefit of hindsight and if counsel provided meaningfulrepresentation in the context of the evidence, the law, and the circumstances of the particularcase, the constitutional requirement will have been met" (People v Butler, 143 AD2d 140,140-141 [1988]; see People v Satterfield, 66 NY2d 796, 798-799 [1985]; People vBaldi, 54 NY2d 137, 147 [1981]). "[I]t is incumbent on defendant to demonstrate theabsence of strategic or other legitimate explanations for counsel's alleged [*2]shortcomings. . . . As long as the defense reflects areasonable and legitimate strategy under the circumstances and evidence presented, even ifunsuccessful, it will not fall to the level of ineffective assistance" (People v Benevento,91 NY2d 708, 712-713 [1998] [citations and internal quotation marks omitted]). Here, defensecounsel presented a reasonable strategy of seeking an acquittal on the murder count rather than areduction of the count to manslaughter based upon the affirmative defense of extreme emotionaldisturbance. Under the circumstances, the defendant was afforded meaningfulrepresentation.
The defendant correctly contends that the police search of his computer was not authorizedby the search warrant obtained by the police. However, the violation of the defendant'sconstitutional right was harmless error, as the evidence of the defendant's guilt wasoverwhelming, and there was no reasonable possibility that the error contributed to thedefendant's conviction (see People vLewis, 23 NY3d 179, 189 [2014]; People v Crimmins, 36 NY2d 230, 241-242[1975]).
The defendant's remaining contentions are without merit. Balkin, J.P., Austin, Sgroi andLaSalle, JJ., concur.