| People v Hardy |
| 2018 NY Slip Op 07449 [166 AD3d 645] |
| November 7, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael Hardy, Appellant. |
Paul Skip Laisure, New York, NY (Jonathan Schoepp-Wong of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, and Hannah X. Collins of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Robert A. Schwartz, J.), rendered June 16, 2016, convicting him of obstructinggovernmental administration in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's conviction of obstructing governmental administration in the seconddegree arose from an incident that occurred at the Queens County Criminal Courthouse.The defendant was in a holding cell after a court appearance on an unrelated matter andwas splashed by milk thrown by someone in a neighboring cell. The defendant becameangry and wanted to fight the person who threw the milk. Shortly thereafter, CorrectionOfficer Reyes called the defendant's name and directed him to exit the holding cell, as itwas time for the defendant to board the bus that would return him to Rikers Island.According to the testimony of prosecution witnesses, the defendant became upset afterReyes refused to give the defendant a carton of milk to throw into the neighboring celland the defendant then punched Reyes in the face. The People presented testimony thatthree other correction officers assisted Reyes in subduing and handcuffing the defendant,during which the defendant punched another correction officer in the neck. According tothe defendant, he was the victim of an unprovoked attack by Reyes and was furtherassaulted by other correction officers who beat him and caused him to sustain numerousinjuries. Upon a jury verdict, the defendant was acquitted of three counts of assault in thesecond degree and was convicted of obstruction of governmental administration in thesecond degree.
Contrary to the defendant's contention, he was not deprived of the effectiveassistance of counsel because his attorney failed to request a justification charge underPenal Law § 35.15. Viewed as a whole, the record of the trial proceedingsdemonstrates that the defendant was afforded meaningful representation (see People v Honghirun, 29NY3d 284, 289 [2017]; People v Benevento, 91 NY2d 708, 712 [1998]; People v Moore, 66 AD3d707, 710 [2009], affd 15 NY3d 811 [2010]). The record shows that trialcounsel engaged in searching cross-examination, presented a viable defense to thecharged crimes, made appropriate motions on the defendant's behalf, and presented acogent summation argument to the jury, which resulted in the defendant's acquittal of themost serious charges against [*2]him (see People vMoore, 66 AD3d at 711). While, in rare cases, a single omission may constituteineffective assistance of counsel, counsel's failure to request a justification charge wasnot such an error because a justification defense was not supported by a reasonable viewof the evidence and such defense would have conflicted with the defendant's account ofthe underlying incident (see id.).
The defendant's contention that the Supreme Court should have instructed the jurywith regard to the defense of justification under Penal Law § 35.15 isunpreserved for appellate review, because defense counsel never requested such a charge(see CPL 470.05 [2]; People v Clark, 129 AD3d 1, 17-18 [2015], affd 28NY3d 556 [2016]; People v Moore, 66 AD3d at 709-710). Moreover, the trialcourt was under no obligation to give a justification charge, sua sponte, under thecircumstances of this case, where such instruction would interfere with the defendant'strial strategy (see People v Clark, 129 AD3d at 18-19; People v Moore,66 AD3d at 710).
The defendant's contention that he was deprived of due process and a fair trial bycertain of the prosecutor's summation remarks is unpreserved for appellate review, asdefense counsel failed to object to the challenged comments (see CPL 470.05 [2];People v McMillan, 130AD3d 651, 654 [2015], affd 29 NY3d 145 [2017]; People v Erskine, 90 AD3d674, 675 [2011]). In any event, the challenged remarks constituted fair comment onthe evidence (see People vHawley, 112 AD3d 968, 969 [2013]; People v Erskine, 90 AD3d at 675;People v Rhodes, 11 AD3d487, 488 [2004]), and did not exceed the bounds of permissible advocacy (cf.People v Calabria, 94 NY2d 519, 523 [2000]). Accordingly, the defendant'scontention that he was deprived of the effective assistance of counsel due to hisattorney's failure to object to these allegedly improper remarks is without merit (seePeople v McMillan, 130 AD3d at 654-655; People v Erskine, 90 AD3d at675). Rivera, J.P., Dillon, Cohen and Iannacci, JJ., concur.