| People v Bostic |
| 2019 NY Slip Op 05722 [174 AD3d 1135] |
| July 18, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jevon Bostic, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Mulvey, J. Appeal from a judgment of the Supreme Court (McDonough, J.), rendered June30, 2017 in Albany County, upon a verdict convicting defendant of the crimes of attemptedassault in the first degree and assault in the second degree.
Defendant was charged by indictment with attempted assault in the first degree and assault inthe second degree on allegations that he struck and injured the victim, a store employee, with arazor blade. This incident occurred when defendant used one of the store's lighters to ignite whatthe victim believed to be a marihuana cigarette, and the victim tried to prevent defendant fromleaving the premises while the police were called. After a jury trial, defendant was convicted ascharged and was sentenced to concurrent prison terms of 18 years to life and 12 years to life,respectively. Defendant appeals.
We affirm. Initially, defendant waived his argument that his statements to police should nothave been admitted into evidence, and, nevertheless, the argument lacks merit. Supreme Courtdenied defendant's motion to suppress the statements to police because, based on the testimonypresented at the hearing, defense counsel conceded that there was "no real argument that [he]could make that the statements [were not] voluntary" and, at the suppression hearing, hestipulated to the constitutionality of the statements based upon a review of the video of theinterview (see People v Katehis, 117AD3d 1080, 1081 [2014], lv denied 25 NY3d 951 [2015]; People v Stroman, 27 AD3d 589,590 [2006], lv denied 7 NY3d 763 [2006]).
Supreme Court did not err by refusing to strike a prospective juror for cause. "[W]here aprospective juror unambiguously states that, despite preexisting opinions that might indicate bias,he or she will decide the case impartially and based on the evidence, the trial court has discretionto deny the challenge for cause if it determines that the juror's promise to be impartial is credible"(People v Warrington, 28 NY3d1116, 1120 [2016] [internal quotation marks, brackets, emphasis and citation omitted]; see People v Gross, 172 AD3d741, 743 [2019]). Further, a "nodding acquaintance" (People v Provenzano, 50NY2d 420, 425 [1980]) with the District Attorney does not disqualify a juror, especially wherethe relationship was "limited in nature" (People v Scott, 16 NY3d 589, 595 [2011]). The prospective juror inquestion, who is now retired, had worked previously as a peace officer with arrest powers and asa part-time police officer for the Village of Altamont Police Department, his retired mother waspreviously head of security in the Albany County District Attorney's office and he had met theDistrict Attorney four or five times at various events. He also requested to use the restroom andwas absent for a portion of the defense's voir dire, as consented to by defense counsel. SupremeCourt did not err by refusing to strike this prospective juror for cause because any possible biasagainst defendant was cured upon questioning by the court, wherein the prospective jurorrepeatedly and unequivocally affirmed that he could be impartial and could evaluate the case,evidence and law as given (see People v Warrington, 28 NY3d at 1119-1121; Peoplev Provenzano, 50 NY2d at 423-425; People v Gross, 172 AD3d at 743).
Supreme Court did not abuse its discretion in determining that defendant was competent tostand trial. "The key inquiry in determining whether a criminal defendant is fit for trial is whetherhe or she has sufficient present ability to consult with his or her lawyer with a reasonable degreeof rational understanding—and whether he or she has a rational as well as factualunderstanding of the proceedings against him or her. In making this determination, a court maytake into account the findings of any competency examination as well as its own observations ofthe defendant. Notably, trial fitness is a legal, judicial determination, and not a medical one, andwe accord considerable deference to a trial court's determination in this regard" (People v Babcock, 152 AD3d 962,963 [2017] [internal quotation marks and citations omitted], lv denied 30 NY3d 947[2017]; see People v Phillips, 16NY3d 510, 516-517 [2011]; Peoplev Kendall, 91 AD3d 1191, 1192 [2012]; People v Surdis, 77 AD3d 1018, 1018-1019 [2010], lvdenied 16 NY3d 800 [2011]; People v Campbell, 279 AD2d 797, 798 [2001], lvdenied 96 NY2d 826 [2001]).
Here, Supreme Court, sua sponte, ordered that defendant be examined to determine if he wascompetent to stand trial. Three different doctors examined defendant, two on behalf of the Peopleand one on behalf of defendant, and all three determined that defendant was competent to standtrial. We are cognizant of defendant's contention that his counsel was unable to communicatewith him during trial and that defendant engaged in repeated and inappropriate outbursts duringtrial. However, his assertion of incompetency is belied by the trial transcript, which shows thatdefendant was able to successfully testify on his own behalf and clearly responded to questioningon direct and cross-examination. Thus, according deference to Supreme Court's competencydetermination, we cannot conclude that the court erred in that regard (see People vPhillips, 16 NY3d at 516-517; People v Babcock, 152 AD3d at 963-964; People vKendall, 91 AD3d at 1192; People v Surdis, 77 AD3d at 1018-1019; People vCampbell, 279 AD2d at 798).
Further, defendant was not deprived of the effective assistance of counsel. "To prevail on anineffective assistance of counsel claim under the NY Constitution, a defendant bears the burdenof establishing that defense counsel deprived him or her of a fair trial by providing less thanmeaningful representation" (People vIldefonso, 150 AD3d 1388, 1388 [2017] [citations omitted], lv denied 30 NY3d980 [2017]; see People v Stetin, 167AD3d 1245, 1249 [2018], lv denied 32 NY3d 1178 [2019]). Counsel's "[f]ailure tomake a motion or argument that has little or no chance of success does not constitute theineffective assistance of counsel" (People v Zayas-Torres, 143 AD3d 1176, 1179-1180 [2016][internal quotation marks and citations omitted], lv denied 30 NY3d 984 [2017]; see People v Caban, 5 NY3d 143,152 [2005]).
Defendant's contention that his counsel was ineffective for failing to challenge thevoluntariness of his statement to police is belied by the record, which demonstrates that defensecounsel zealously advocated for defendant throughout the suppression hearing and, upon theconclusion of the evidence, determined that there was no cognizable legal theory under which tofurther argue for the suppression of defendant's statements. Ultimately, defense counsel useddefendant's statement to police at trial, due to its consistency with his grand jury testimony, toadvance defendant's theory of justification. Defense counsel was not ineffective for failing tocontinue or failing to renew an argument that had little to no chance of success (see People vCaban, 5 NY3d at 152; People v Zayas-Torres, 143 AD3d at 1179-1180).
Defendant's further contentions regarding ineffective assistance of counsel are based oncounsel's alleged failures to make arguments, objections or motions that had little or no chance ofsuccess (see People v Caban, 5 NY3d at 152; People v Stetin, 167 AD3d at 1250;People v Zayas-Torres, 143 AD3d at 1179-1180). A majority of these alleged errors arecontradicted by the record, which shows that counsel successfully objected, raised issue with andotherwise addressed in some regard the issues that defendant now contends amount to ineffectiveassistance. Defendant's remaining ineffective assistance arguments are without merit as"defendant has not demonstrated the absence of strategic or other legitimate explanations forcounsel's alleged shortcomings," specifically regarding counsel's failure to request a missingwitness instruction (People vStanley, 108 AD3d 1129, 1130-1131 [2013] [internal quotation marks and citationomitted], lv denied 22 NY3d 959 [2013]; see People v Benevento, 91 NY2d 708,712-713 [1998]). Defendant's contentions regarding the substance and timing of theMolineux jury instructions and defendant's challenges to the People's summation, exceptfor his propensity challenges, are unpreserved. The remainder of defendant's arguments havebeen examined and are without merit.
Clark, J.P., Devine, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.