Opinion
No. 2019-10727 Ind. No. 4991/17
11-27-2024
The People of the State of New York, respondent, v. Davon Fowler, appellant.
Patricia Pazner, New York, NY (Sarah B. Cohen of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Jordan Cerruti, and David Cao of counsel), for respondent.
Patricia Pazner, New York, NY (Sarah B. Cohen of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Jordan Cerruti, and David Cao of counsel), for respondent.
BETSY BARROS, J.P., ROBERT J. MILLER, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Michael A. Gary, J.), rendered August 2, 2019, convicting him of attempted murder in the second degree and assault in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 N.Y.3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383, 410; People v Bleakley, 69 N.Y.2d 490, 494). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633).
The defendant's contention that he was deprived of the effective assistance of counsel because his attorney failed to request a competency hearing is without merit. "[T]here can be no deprivation of effective assistance of counsel arising from counsel's failure to make a motion that had little or no chance of success" (People v Shaffer, 81 A.D.3d 989, 990). Here, on two separate occasions, the Supreme Court issued an order of examination pursuant to CPL 730.30(1), and the psychologists designated as the psychiatric examiners pursuant to those respective orders each found the defendant fit to proceed. Moreover, defense counsel retained a psychologist to separately evaluate the defendant who did not conclude that the defendant was unfit to proceed (see People v Hassan, 172 A.D.3d 744, 745; People v Sulaiman, 134 A.D.3d 860, 860; People v Shaffer, 81 A.D.3d at 990). The record as a whole reveals that the defendant received meaningful representation (see People v Jermain, 56 A.D.3d 1165; People v Ferrer, 16 A.D.3d 913), and that counsel's representation did not fall below an objective standard of reasonableness (see People v Sulaiman, 134 A.D.3d at 860; see generally Strickland v Washington, 466 U.S. 668, 688).
The defendant's challenge to certain remarks made by the prosecutor during summation is largely unpreserved for appellate review (see CPL 470.05[2]). In any event, the challenged remarks constituted fair comment on the evidence and the inferences to be drawn therefrom (see People v Fuhrtz, 115 A.D.3d 760; People v Birot, 99 A.D.3d 933; People v Guevara-Carrero, 92 A.D.3d 693) or were responsive to defense counsel's comments during summation (see People v Dimas, 228 A.D.3d 955, 957; People v Adamo, 309 A.D.2d 808; People v Clark, 222 A.D.2d 446). To the extent that any of the prosecutor's remarks were improper, they were "not so flagrant or pervasive as to deny the defendant a fair trial" (People v Almonte, 23 A.D.3d 392, 394; see People v Svanberg, 293 A.D.2d 555). Further, the evidence of the defendant's guilt was overwhelming, and there is no significant probability that any improper remarks made by the prosecutor during summations contributed to the defendant's conviction (see People v Dimas, 228 A.D.3d at 957; People v Green, 223 A.D.3d 914; People v Wu Long Chen, 210 A.D.3d 702).
The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
BARROS, J.P., MILLER, FORD and DOWLING, JJ., concur.