Opinion
02-15-2017
The PEOPLE, etc., respondent, v. Jerome WITHERSPOON, appellant.
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Jonathan K. Yi of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Jonathan K. Yi of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.), rendered November 20, 2013, convicting him of assault in the first degree, criminal possession of a weapon in the second degree (two counts), assault in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the conviction of assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, the evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, reveal that trial counsel provided the defendant with meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). The defendant was not deprived of the effective assistance of counsel based upon trial counsel's failure to request a justification charge. Viewing the record in the light most favorable to the defendant, no reasonable view of the evidence would support a finding that his actions were justified (see Penal Law § 35.15[2] ; People v. Albritton, 63 A.D.3d 749, 749, 881 N.Y.S.2d 131 ; People v. Hayes, 51 A.D.3d 688, 688, 858 N.Y.S.2d 242 ; People v. Barling, 269 A.D.2d 458, 458, 702 N.Y.S.2d 888 ). Moreover, trial counsel's failure to request further redactions to those portions of the complaint that were read to the jury did not amount to ineffective assistance of counsel, since an attorney is not deemed ineffective for failing to pursue an argument that had little or no chance of success (see People v. Ennis, 11 N.Y.3d 403, 415, 872 N.Y.S.2d 364, 900 N.E.2d 915 ). Additionally, contrary to the defendant's contention, the complainant's testimony and a detective's testimony about the circumstances under which they discovered the perpetrator's nickname, and how the nickname led to the defendant's arrest, did not provide evidence from which the jury would invariably conclude that the defendant had previously been convicted of a crime, and was admissible for the nonhearsay purpose of establishing the reasons behind the detective's actions, and to complete the narrative of events leading to the defendant's arrest (see People v. Speaks, 124 A.D.3d 689, 692, 1 N.Y.S.3d 257affd. 28 N.Y.3d 990, 42 N.Y.S.3d 644, 65 N.E.3d 673 ; People v. Ragsdale, 68 A.D.3d 897, 889 N.Y.S.2d 681 ; People v. Smalls, 293 A.D.2d 500, 501, 739 N.Y.S.2d 630 ). While trial counsel should have requested a limiting instruction that this testimony should not be considered for its truth (see People v. Negrin, 140 A.D.3d 1192, 1193, 35 N.Y.S.3d 200 ), this single error was not sufficiently egregious and prejudicial as to compromise the defendant's right to a fair trial, and, thus, did not render counsel's performance ineffective (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Mason, 119 A.D.3d 710, 711, 988 N.Y.S.2d 887 ; People v. Lewis, 117 A.D.3d 751, 752, 988 N.Y.S.2d 626 ).
The defendant's contention that the Supreme Court should have instructed the jury with regard to the defense of justification is unpreserved for appellate review (see CPL 470.05[2] ; People v. Harris, 48 A.D.3d 830, 830, 851 N.Y.S.2d 366 ) and, in any event, without merit (see People v. Kin Wong, 81 A.D.3d 421, 916 N.Y.S.2d 57 ; People v. Moore, 66 A.D.3d 707, 709–710, 886 N.Y.S.2d 468, affd. 15 N.Y.3d 811, 908 N.Y.S.2d 146, 934 N.E.2d 879 ; People v. Ojar, 38 A.D.3d 684, 685, 832 N.Y.S.2d 250 ; People v. Castano, 236 A.D.2d 215, 654 N.Y.S.2d 7 ; People v. Pichardo, 168 A.D.2d 577, 578, 562 N.Y.S.2d 792 ).
However, as the People correctly concede, the defendant's conviction of assault in the second degree, and the sentence imposed thereon, must be vacated, and that count of the indictment must be dismissed, because that count is an inclusory concurrent count of the defendant's conviction of assault in the first degree (see CPL 300.40[3][b] ; People v. Gaviria, 67 A.D.3d 701, 886 N.Y.S.2d 900 ).