| People v Kranz |
| 2023 NY Slip Op 02215 [215 AD3d 1253] |
| April 28, 2023 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Michael E. Kranz, Appellant. |
Cambareri & Brenneck, Syracuse (Melissa K. Swartz of counsel), fordefendant-appellant.
Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Armen J. Nazarian, J.),rendered May 19, 2022. The judgment convicted defendant upon a nonjury verdict ofcriminal mischief in the second degree, reckless driving, and reckless endangerment inthe second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed andthe matter is remitted to Oswego County Court for proceedings pursuant to CPL 460.50(5).
Memorandum: On appeal from a judgment convicting him upon a nonjury verdict of,inter alia, criminal mischief in the second degree (Penal Law § 145.10),defendant contends that he was denied effective assistance of counsel based on a seriesof alleged errors by defense counsel. We reject that contention.
With respect to defendant's assertion that defense counsel was ineffective because hefailed to oppose the People's pretrial request to admit a 911 call made by one of thecomplainants, "[i]t is well settled that '[a] defendant is not denied effective assistance oftrial counsel [where defense] counsel does not make a[n] . . . argument thathas little or no chance of success' " (People v March, 89 AD3d 1496, 1497 [4th Dept 2011],lv denied 18 NY3d 926 [2012], quoting People v Stultz, 2 NY3d 277, 287 [2004], rearg denied3 NY3d 702 [2004]). Here, the complainant placed the 911 call immediately afterdefendant backed his truck into the vehicle she was driving, while she was attempting torestart the vehicle in order to leave the scene. During the call, the complainant told the911 operator "I need the police here, I'm shaking, I'm scared." An objection to theadmission of the 911 call would not have been meritorious, because the call was properlyadmitted "under the excited utterance exception to the hearsay rule inasmuch as thestatements were made while [the complainant] was under the extraordinary stress of" thesituation, as well as "under the present sense impression exception . . .because [the call] [was] made while the declarant was perceiving 'the event as it [was]unfolding' " (People vJones, 66 AD3d 1442, 1443 [4th Dept 2009], lv denied 13 NY3d 939[2010], quoting People v Vasquez, 88 NY2d 561, 574 [1996]). We further rejectdefendant's contentions that he was denied effective assistance of counsel based ondefense counsel's elicitation of allegedly damaging testimony in cross-examining thePeople's witnesses regarding earlier disputes between defendant and the complainants,and defense counsel's failure to cross-examine the complainants as to which one of themwas driving the vehicle when it was struck by defendant. Those contentions involve"simple disagreement[s] with strategies, tactics or the scope of possiblecross-examination, weighed long after the trial," and thus are insufficient to establishineffective assistance of counsel (People v Flores, 84 NY2d 184, 187 [1994];see generally People v Baldi, 54 NY2d 137, 147 [1981]). With respect todefendant's remaining allegations of ineffective assistance of counsel, we conclude that"the evidence, the law, and the circumstances of [this] particular case, viewed in totalityand as of the time of the representation, reveal that the attorney provided meaningfulrepresentation" (Baldi, 54 NY2d at 147). Present—Peradotto, J.P., Curran,Bannister and Montour, JJ.