Opinion
336 KA 15–02009
03-15-2019
The PEOPLE of the State of New York, Respondent, v. Sylvester E. BAXTRUM, Jr., Defendant–Appellant.
JEFFREY WICKS, PLLC, ROCHESTER (CHARLES D. STEINMAN OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
JEFFREY WICKS, PLLC, ROCHESTER (CHARLES D. STEINMAN OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of two counts of burglary in the first degree ( Penal Law § 140.30[2], [3] ) and one count of assault in the second degree (§ 120.05[2] ), defendant contends that he was denied effective assistance of counsel because defense counsel failed to make a timely motion to sever his trial from that of his codefendant and failed to request a limiting instruction regarding testimony that defendant contends was relevant only to the issue of his codefendant's guilt. We reject defendant's contention. "Any motion to sever ... would have had little or no chance of success," and thus counsel's failure to make such a motion does not indicate ineffectiveness of counsel ( People v. Dozier, 32 A.D.3d 1346, 1347, 821 N.Y.S.2d 726 [4th Dept. 2006], lv dismissed 8 N.Y.3d 880, 832 N.Y.S.2d 492, 864 N.E.2d 622 [2007] [internal quotation marks omitted], citing People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). With respect to the limiting instruction, defendant failed to show the absence of strategic or other legitimate explanations for defense counsel's alleged deficiency (see generally People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ). Moreover, we conclude that the evidence, the law and the circumstances of this case, viewed in totality and as of the time of representation, establish that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Defendant's remaining contention is raised for the first time in defendant's reply brief and thus is not properly before us (see People v. Larkins, 153 A.D.3d 1584, 1586, 62 N.Y.S.3d 648 [4th Dept. 2017], lv denied 30 N.Y.3d 1061, 71 N.Y.S.3d 11, 94 N.E.3d 493 [2017] ; People v. Sponburgh, 61 A.D.3d 1415, 1416, 877 N.Y.S.2d 585 [4th Dept. 2009], lv denied 12 N.Y.3d 929, 884 N.Y.S.2d 711, 912 N.E.2d 1092 [2009] ; People v. Boatman, 53 A.D.3d 1053, 1054, 861 N.Y.S.2d 882 [4th Dept. 2008] ).