| People v Zi He Wu |
| 2018 NY Slip Op 03572 [161 AD3d 1396] |
| May 17, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v ZiHe Wu, Appellant. |
Goldberger & Dubin, PC, New York City (Stacey A. Van Malden of counsel), forappellant.
Kelli P. McCoski, District Attorney, Fonda (Lorraine C. Diamond of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Montgomery County (Sira, J.),rendered November 21, 2016, upon a verdict convicting defendant of the crime of assault in thesecond degree (two counts).
Defendant was admitted to a hospital's mental health inpatient unit in April 2016 and, whilethere, attacked and injured two employees in an apparent attempt to flee. He was charged in anindictment with offenses related to that incident and, at trial, advanced "the affirmative defenseof lack of criminal responsibility by reason of mental disease or defect" (CPL 250.10 [1] [a];see Penal Law § 40.15). The jury rejected that defense and found him guiltyof two counts of assault in the second degree. County Court then sentenced defendant toconcurrent prison terms of five years to be followed by postrelease supervision of two years.Defendant appeals, and we affirm.
Defendant contends that trial counsel rendered ineffective assistance, an argument that willfail if "the evidence, the law, and the circumstances of [the] case, viewed in totality and as of thetime of the representation, reveal that the attorney provided meaningful representation"(People v Baldi, 54 NY2d 137, 147 [1981]; accord People v Oliveras, 21 NY3d 339, 346 [2013]). It is furtherincumbent upon defendant to show that counsel's performance was deficient and "that anyalleged failure by defense counsel lacked a 'strategic or other legitimate explanation[ ]' at the timeit occurred" (People v Pottorff, 145AD3d 1095, 1097 [2016], lv denied [*2]30 NY3d1063 [2017], quoting People vNicholson, 26 NY3d 813, 831 [2016]; see People v Rosario, 157 AD3d 988, 993 [2018]).
Defense counsel had the daunting task of defending a case where defendant's actions on thenight of the incident were beyond dispute. Defense counsel played this weak hand by giving latenotice of, and successfully arguing for leave to present, the defense of mental disease or defectvia the testimony of a clinical psychologist (see CPL 250.10 [2]). The delay in assertingthat defense was explained to County Court's satisfaction, and defendant gives no reason tobelieve that defense counsel's explanation was incorrect. Nothing in defense counsel'sexamination of the psychologist—in which counsel elicited the psychologist's knowledgeof certain inconvenient facts in a seeming effort to show that the psychologist had consideredthem in forming an opinion as to defendant's mental state—reflected a lack of preparationas opposed to valid strategy (cf. People v Wilson, 133 AD2d 179, 181-182[1987]).[FN*] Contrary todefendant's contention, defense counsel elicited a clear opinion from the psychologist thatdefendant was psychotic at the time of the incident and that his worsening "delusion andhallucinations" led to the attacks. Defendant further complains that he damaged his defense byexercising his right to testify, but "[t]here is nothing in the record to suggest that [his] decision totestify was anything other than voluntary, and the fact that he may now regret that decision doesnot establish that he was denied meaningful representation" (People v Varmette, 70 AD3d 1167, 1172 [2010], lv denied14 NY3d 845 [2010]). Defendant points to other purported deficiencies as well, but the record asa whole reveals that defense counsel handled a challenging case with aplomb and affordeddefendant with meaningful representation.
Turning to sentencing, defendant did not raise any issue with regard to the aggregate sentencedespite having been afforded an opportunity to do so by County Court. He accordingly failed topreserve his contention that the aggregate sentence reflected retaliation for his decision to rejectprior plea offers and demand the trial to which he was entitled (see People v Hurley, 75NY2d 887, 888 [1990]; People vHahn, 159 AD3d 1062, 1067 [2018]). "In any event, the fact that defendant's sentencewas greater than that offered during plea negotiations" does not demonstrate that he waspenalized for proceeding to trial (People v Hahn, 159 AD3d at 1067; see People v Martinez, 144 AD3d1326, 1326 [2016], lv denied 28 NY3d 1186 [2017]). County Court stated whatfactors motivated it to impose a greater sentence than the ones contemplated by prior plea offers,pointing to the jury's rejection of defendant's mental disease or defect defense, his failure toaccept responsibility for his acts during the presentence investigation and the degree to which hisacts wrought physical injuries and emotional impacts upon the victims. There was nothingretaliatory in this and, after considering those factors ourselves, we cannot say that "extraordinarycircumstances exist that render the sentence[ ] imposed harsh and excessive" (People v Best, 158 AD3d 989, 990[2018]; see People v Gray, 47 AD3d1068, 1068 [2008], lv denied 10 NY3d 863 [2008]).
McCarthy, J.P., Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:To the extent that defendantasserts that defense counsel's purported unreadiness may be shown from facts outside of therecord, his remedy is to seek relief pursuant to CPL article 440 (see People v Vickers, 156 AD3d1236, 1238 [2017], lv denied 31 NY3d 988 [2018]; People v Fisher, 126 AD3d 1048,1052 [2015]).