| People v Meyers |
| 2018 NY Slip Op 04757 [162 AD3d 1074] |
| June 27, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Vincent Meyers, Appellant. |
Patrick Michael Megaro, Uniondale, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Daniel Bresnahan and PamelaKelly-Pincus of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Jerald S.Carter, J.), dated March 12, 2015, convicting him of robbery in the second degree (two counts),assault in the second degree, criminal possession of stolen property in the fourth degree, criminalpossession of stolen property in the fifth degree, criminal mischief in the fourth degree (twocounts), and harassment in the second degree, upon a jury verdict, and imposing sentence. Bydecision and order dated March 22, 2017, this Court remitted the matter to the Supreme Court,Nassau County, for a reconstruction hearing regarding the item in the court file denominated"Court Exhibit # XIV," and thereafter a report to this Court, and the appeal was held in abeyancein the interim. The Supreme Court, Nassau County, has filed its report.
Ordered that the judgment is affirmed.
When this appeal was first before us, we held it in abeyance and remitted the matter to theSupreme Court, Nassau County, for a reconstruction hearing to establish the circumstancessurrounding "Court Exhibit # XIV," which was contained in the court file and appeared to be ajury note, but which, on the record then before us, did not appear to have led to any discussionwith counsel or response to the jury, and a report thereafter. We did not, at that time, address anyother issue (see People v Meyers,148 AD3d 1057 [2017]). The Supreme Court, Nassau County, has conducted thereconstruction hearing and filed its report.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we accord greatdeference to the [*2]jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's contention that he was deprived of the effective assistance of counselbecause his trial counsel failed to move to reopen the suppression hearing is without merit.Counsel will not be deemed ineffective for failing to pursue an argument that has little or nochance of success (see People vFlowers, 28 NY3d 536, 541 [2016]; People v Brown, 13 NY3d 332, 341 [2009]; People v Ennis, 11 NY3d 403, 415[2008]; People v Caban, 5 NY3d143, 152 [2005]). Here, the defendant did not establish that the witnesses' hearing testimonywas inconsistent with their trial testimony, and it is unlikely that the Supreme Court would havegranted an application to reopen the suppression hearing or that, if it had done so, it would havesuppressed the physical evidence as a result. Accordingly, trial counsel was not ineffective forfailing to make that application. Moreover, the evidence, the law, and the circumstances of thecase, viewed in totality and as of the time of the representation, reveal that trial counsel providedmeaningful representation (see People vWright, 25 NY3d 769, 779 [2015]; People v Caban, 5 NY3d at 152; People vBerroa, 99 NY2d 134, 138-139 [2002]; People v Baldi, 54 NY2d 137, 146-147[1981]).
In its report after the reconstruction hearing, the Supreme Court concluded that "CourtExhibit # XIV" was merely a draft note that had been discarded by the jury in favor of separatenotes addressing the same topics. Those notes were duly transmitted to, and addressed by, thecourt. The evidence presented at the reconstruction hearing supports the court's conclusion anddemonstrates that the court did not fail to comply with the procedures required by CPL 310.30and People v O'Rama (78 NY2d 270 [1991]) with respect to jury notes (see generally People v Neree, 142AD3d 1026, 1027 [2016]; People vSorrell, 108 AD3d 787, 793 [2013]; People v Albanese, 45 AD3d 691, 692 [2007]; People vQuintana, 262 AD2d 101 [1999]). Accordingly, "Court Exhibit # XIV" affords no basis forreversal of the defendant's convictions. Rivera, J.P., Balkin, Chambers and Cohen, JJ.,concur.