Opinion
June 30, 1977
Appeal from a judgment of the County Court of Tioga County, rendered June 3, 1976, upon a verdict convicting defendant of the crime of criminal possession of a forged instrument in the first degree. On this appeal, the issue presented is whether the failure of defendant's attorney to request that the jury be instructed as to lesser included offenses of criminal possession of a forged instrument in the second and third degrees, and the fact that, by his questioning, defendant's attorney elicited prejudicial testimony from a key prosecution witness, amounted to such inadequate and ineffective assistance of counsel as to require reversal of the conviction. It is not disputed that the forged instrument involved in the instant case was "part of an issue of money" as specified in section 170.15 Penal of the Penal Law. That being the case, defendant could be found guilty only of criminal possession of a forged instrument in the first degree (Penal Law, § 170.30), and no reasonable view of the evidence would support a finding that the defendant committed a lesser offense but did not commit the greater (People v Hubbard, 48 A.D.2d 941). Thus, the court would not have been required to charge the lesser included offenses even though requested by defendant's attorney (CPL 300.50, subd 1). The fact that defendant's attorney may have elicited prejudicial testimony from a prosecution witness does not afford a basis for a finding of inadequacy of his representation under the facts here. There is no requirement that counsel be free from any errors in the conduct of the trial, but simply that his assistance "be susceptible of being deemed of an assistive nature" (People v La Bree, 34 N.Y.2d 257, 261). The defendant was represented by counsel of his own choosing and the record discloses a vigorous defense on his part. Considering the conduct of counsel in its entirety it cannot possibly be characterized as so ineffective as to make the proceedings a mockery of justice (People v Gene SS, 51 A.D.2d 1064). Judgment affirmed. Koreman, P.J., Sweeney, Mahoney, Larkin and Herlihy, JJ., concur.