Opinion
2015-10-14
Lynn W.L. Fahey, New York, N.Y. (Nao Terai of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Jonathan K. Yi of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Nao Terai of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Jonathan K. Yi of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.), rendered March 6, 2013, convicting him of assault in the second degree, leaving the scene of an incident without reporting, failure to stop at a steady red signal, unsafe lane change, reckless driving, aggravated unlicensed operation of a motor vehicle in the third degree, and overtaking a school bus, after a nonjury trial, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was not denied the effective assistance of counsel. Viewing the record in its entirety, the defendant received meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Rivera, 71 N.Y.2d 705, 530 N.Y.S.2d 52, 525 N.E.2d 698). Contrary to the defendant's contention, counsel's failure to request consideration of the lesser-included offense of assault in the third degree ( seePenal Law § 120.00[3] ) was a matter of strategy and tactics, which ultimately rested with counsel ( see People v. Colville, 20 N.Y.3d 20, 23, 955 N.Y.S.2d 799, 979 N.E.2d 1125). Under the facts of this case, counsel's representation cannot be considered ineffective ( see People v. Ennis, 11 N.Y.3d 403, 415, 872 N.Y.S.2d 364, 900 N.E.2d 915; People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's remaining contentions are without merit. DILLON, J.P., CHAMBERS, HALL and HINDS–RADIX, JJ., concur.