| People v McFadden |
| 2018 NY Slip Op 03282 [161 AD3d 1570] |
| May 4, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Robert McFadden, Also Known as John Doe,Appellant. |
Jeffrey Wicks, PLLC, Rochester (Charles Steinman of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (John L. DeMarco, J.), renderedDecember 2, 2014. The judgment convicted defendant, upon a jury verdict, of manslaughter inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofmanslaughter in the second degree (Penal Law § 125.15 [1]), defendant contendsthat he was deprived of effective assistance of counsel because his trial attorney failed to requestcriminally negligent homicide (§ 125.10) as a lesser included offense of intentionalmurder and failed to ask County Court to instruct the jury on the justification defense. We rejectthat contention. Although there was a reasonable view of the evidence that defendant negligentlyshot the victim, whom defendant claimed grabbed the barrel of defendant's loaded handgun andtried to steal it, "it is incumbent on defendant to demonstrate the absence of strategic or otherlegitimate explanations" for defense counsel's allegedly deficient conduct (People vRivera, 71 NY2d 705, 709 [1988]; see People v Benevento, 91 NY2d 708, 712[1998]), and defendant failed to meet that burden (see People v Hicks, 110 AD3d 1488, 1489 [4th Dept 2013], lvdenied 22 NY3d 1156 [2014]).
Indeed, it would have been a reasonable strategy for defense counsel to decide not to requestcriminally negligent homicide as a lesser included offense because, without that charge, thechances of defendant being acquitted outright were increased (see generally People vLane, 60 NY2d 748, 750 [1983]). That is to say, if the jury believed defendant's claim thatthe gun went off accidently when the victim tried to steal it from him, the jury would haveacquitted defendant because it did not have the option of finding him guilty of criminallynegligent homicide. If criminally negligent homicide had been charged, and the jury believeddefendant's accidental shooting claim, he would have been convicted of criminally negligenthomicide, a class E felony, and sentenced to prison as a second felony offender.
Defendant acknowledges, as he must, that it is reasonable for a defense attorney to adopt an" 'all-or-nothing' " strategy at trial (id.; see People v Clarke, 55 AD3d 370,370 [1st Dept 2008], lv denied 11 NY3d 923 [2009]; People v Guarino, 298AD2d 937, 938 [4th Dept 2002], lv denied 98 NY2d 768 [2002]), and that defensecounsel would therefore not have been ineffective if he failed to request any lesser includedoffenses. Defendant nevertheless contends that, because defense counsel requested manslaughterin the first and second degrees as lesser included offenses, there was no legitimate reason not torequest criminally negligent homicide as a lesser as well. Defendant cites no authority for theproposition that anything other than a complete "all-or-nothing" strategy with respect to lesserincluded offenses is unreasonable, and we fail to see the logic in it.
In any event, even assuming, arguendo, that defense counsel should have requestedcriminally negligent homicide as a lesser included offense, we note that it is well settled that thefailure to request a particular lesser included offense "is not the type of 'clear cut and completelydispositive' error that rises to the level of ineffective assistance of counsel" (People v Harris, 97 AD3d 1111,1112 [4th Dept 2012], lv denied 19 NY3d 1026 [2012], quoting People v Turner, 5 NY3d 476, 481[2005]).
Defendant's contention that defense counsel was ineffective in failing to ask the court toinstruct the jury on justification is similarly without merit. Defendant admitted to the police thathe shot and killed the victim but claimed that he did so accidently when the victim unexpectedlygrabbed the barrel of the gun. Because a person cannot accidently act in self-defense, defensecounsel would have had to present inconsistent defenses to the jury had he requested thejustification charge and the court granted that request. "The 'hazardous' nature of pursuinginconsistent defenses is well established, 'for it not only risks confusing the jury as to the natureof the defense but also may well taint a defendant's credibility in the eyes of the jury' "(People v Nauheimer, 142 AD3d760, 761 [4th Dept 2016], lv denied 28 NY3d 1074 [2016], quoting People vDeGina, 72 NY2d 768, 777 [1988]). Here, "[c]ounsel's failure to request a [justificationcharge] may have been based on a reasonable strategic determination that such a charge would becounterproductive and difficult to reconcile with the accidental [shooting] claim" (People v Poston, 95 AD3d 729,730-731 [1st Dept 2012], lv denied 19 NY3d 1104 [2012]; see Nauheimer, 142AD3d at 761).
Based on our review of the record, we conclude that defense counsel afforded meaningfulrepresentation to defendant, obtaining an acquittal on the two murder counts (both intentionaland felony murder, despite defendant's admission that he took the victim's cell phone aftershooting him), and an acquittal on manslaughter in the first degree. We note that severalprosecution witnesses testified that they saw the shooting, and none of them observed the victimgrabbing the gun, as defendant claimed to the police. Also, it would seem unlikely that the victimwould try to steal a gun while it was being held by defendant with his finger on the trigger, asclaimed by defendant. Yet, despite that evidence, defense counsel persuaded the jury thatdefendant did not intentionally shoot the victim. We also note that defendant, who was sentencedto 7