Opinion
KA 99-05412
May 2, 2003.
An appeal having been taken from a judgment of Erie County Court (D'Amico, J.), entered May 25, 1999, and this Court on May 3, 2002, having entered an order holding the case, reserving decision, and remitting the matter to Erie County Court for further proceedings in accordance with the Memorandum ( 294 A.D.2d 843) and said proceedings have been had and terminated.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROLAND HAYES OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, KEHOE, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
We previously held this case, reserved decision and remitted the matter to Erie County Court for a de novo determination of defendant's pro se CPL article 330 motion on the ground that defendant was denied effective assistance of counsel when his attorney took a position adverse to that of defendant during argument of that motion ( People v. Coleman, 294 A.D.2d 843). Upon remittal, the court assigned new counsel and, following oral argument, denied the motion.
Contrary to the contention of defendant, he was not denied effective assistance of counsel. Based on the evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, both at trial and at argument of the de novo CPL article 330 motion, we conclude that defendant received meaningful representation ( see People v. Hobot, 84 N.Y.2d 1021, 1022; People v Baldi, 54 N.Y.2d 137, 147). Defendant failed to establish that the motions that allegedly should have been made or should have been argued more effectively "would have been successful" ( People v. Ayala, 236 A.D.2d 802, 803, lv denied 90 N.Y.2d 855; see People v. Hernandez, 248 A.D.2d 149, lv denied 91 N.Y.2d 1008). Thus, defendant did not meet his "well-settled, high burden of demonstrating that he was deprived of a fair trial by less than meaningful representation" ( Hobot, 84 N.Y.2d at 1022).
We reject the contention of defendant that the court erred in denying his CPL 30.30 motion without conducting a hearing. By failing to set forth any time periods of postreadiness delay, defendant failed to meet his burden of demonstrating that "'any postreadiness adjournments occurred under circumstances that should be charged to the People'" ( People v. Daniels, 217 A.D.2d 448, 452, appeal dismissed 88 N.Y.2d 917, quoting People v. Cortes, 80 N.Y.2d 201, 215; see People v Giguere, 261 A.D.2d 941, 942, lv denied 93 N.Y.2d 1018). Thus, the motion papers were patently insufficient to warrant a hearing ( see CPL 210.45 [b]).
Defendant failed to preserve for our review his further contention that the evidence of physical injury is legally insufficient to support the conviction of assault in the second degree (Penal Law 120.05; see People v. Gray, 86 N.Y.2d 10, 19) and, in any event, that contention lacks merit. The People presented testimony at trial that the cut to the victim's ear was "severe" and "terrible"; that part of the victim's ear was "hanging off"; and that the injury hurt "for a long time." Thus, "there is [a] valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the [trier of fact] on the basis of the evidence at trial" ( People v. Bleakley, 69 N.Y.2d 490, 495; see People v. Broadwater, 259 A.D.2d 1053, lv denied 93 N.Y.2d 967; People v. Del Valle, 234 A.D.2d 634, 635, lv denied 89 N.Y.2d 1010; cf. People v. Smith, 176 A.D.2d 904, 905). The verdict in this nonjury trial is based largely on credibility determinations by the court that are entitled to great deference ( see People v. Robinson, 272 A.D.2d 943, lv denied 95 N.Y.2d 870), and the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495).
The sentence is neither unduly harsh nor severe.