Opinion
2011-12-8
The PEOPLE of the State of New York, Respondent, v. Tiko D. HEAD, Appellant.
Randolph V. Kruman, Cortland, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.
Randolph V. Kruman, Cortland, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.
Before: PETERS, J.P., SPAIN, McCARTHY, GARRY and EGAN JR., JJ.
PETERS, J.P.
Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered August 13, 2010, upon a verdict convicting defendant of the crimes of criminal contempt in the first degree and menacing in the second degree.
Defendant was convicted following a jury trial of criminal contempt in the first degree and menacing in the second degree arising from an incident wherein he threatened the victim, his ex-girlfriend, with a dangerous instrument. Sentenced as a second felony offender to an aggregate prison term of 2 to 4 years, he now appeals.
Defendant's claims of prosecutorial misconduct are unpreserved for our review, as no objections were raised before County Court ( see People v. Terry, 85 A.D.3d 1485, 1487, 926 N.Y.S.2d 216 [2011], lv. denied 17 N.Y.3d 862, 932 N.Y.S.2d 27, 956 N.E.2d 808 [2011]; People v. Henry, 64 A.D.3d 804, 806, 881 N.Y.S.2d 701 [2009], lv. denied 13 N.Y.3d 860, 891 N.Y.S.2d 694, 920 N.E.2d 99 [2009] ). In any event, were these claims properly before us, we would find no impropriety that deprived defendant of a fair trial. Inasmuch as defendant's testimony during both direct and cross-examination clearly suggested that the People's witnesses had fabricated their testimony, it was not improper for the prosecutor to ask him whether he believed that the People's witnesses had lied during their testimony ( see People v. Buel, 53 A.D.3d 930, 932, 861 N.Y.S.2d 535 [2008]; People v. Allen, 13 A.D.3d 892, 897, 787 N.Y.S.2d 417 [2004], lv. denied 4 N.Y.3d 883, 798 N.Y.S.2d 728, 831 N.E.2d 973 [2005]; People v. Overlee, 236 A.D.2d 133, 139, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ). Furthermore, the portion of the prosecutor's summation which defendant now challenges constituted fair comment on the evidence and the reasonable inferences to be drawn therefrom ( see People v. Taylor, 68 A.D.3d 1728, 1728, 891 N.Y.S.2d 822 [2009], lv. denied 14 N.Y.3d 845, 901 N.Y.S.2d 151, 927 N.E.2d 572 [2010]; People v. Davis, 21 A.D.3d 1336, 1338, 801 N.Y.S.2d 855 [2005], lv. denied 6 N.Y.3d 811, 812 N.Y.S.2d 451, 845 N.E.2d 1282 [2006]; People v. Desordi, 238 A.D.2d 738, 740, 656 N.Y.S.2d 505 [1997], lv. denied 90 N.Y.2d 904, 663 N.Y.S.2d 516, 686 N.E.2d 228 [1997]; People v. Racine, 132 A.D.2d 899, 900, 518 N.Y.S.2d 458 [1987], lv. denied 70 N.Y.2d 754, 520 N.Y.S.2d 1030, 514 N.E.2d 1382 [1987] ). While the prosecutor should not have attempted to appeal to the sympathy of the jury by asking the jury during opening statements to “join [the victim] in the fight back” ( see People v. Nelson, 68 A.D.3d 1252, 1255, 890 N.Y.S.2d 189 [2009] ), this isolated comment was not so substantially prejudicial as to deprive defendant of a fair trial, particularly in light of the strength of the People's case and the overwhelming proof of defendant's guilt ( see id.; People v. Thornton, 4 A.D.3d 561, 563, 771 N.Y.S.2d 597 [2004], lv. denied 2 N.Y.3d 808, 781 N.Y.S.2d 307, 814 N.E.2d 479 [2004]; People v. Hamilton, 227 A.D.2d 669, 672, 641 N.Y.S.2d 746 [1996], lv. denied 88 N.Y.2d 1068, 651 N.Y.S.2d 412, 674 N.E.2d 342 [1996] ).
We are unpersuaded by defendant's contention that counsel's failure to request an intoxication charge constituted ineffective assistance of counsel. While defendant testified that he “drank a little bit” prior to the incident and one of the People's witnesses described him as intoxicated, there was no evidence that defendant's mental state at the time he committed these offenses was affected by alcohol ( see People v. Gaines, 83 N.Y.2d 925, 927, 615 N.Y.S.2d 309, 638 N.E.2d 954 [1994]; People v. Robetoy, 48 A.D.3d 881, 882, 851 N.Y.S.2d 297 [2008]; People v. Van Ness, 43 A.D.3d 553, 555, 840 N.Y.S.2d 250 [2007], lv. denied 9 N.Y.3d 965, 848 N.Y.S.2d 34, 878 N.E.2d 618 [2007] ). Moreover, an intoxication charge would have been inconsistent with the theory proffered by the defense that defendant neither threatened nor hit the victim ( see People v. Van Ness, 43 A.D.3d at 555, 840 N.Y.S.2d 250). Consistent with that theory, defense counsel attacked the credibility of the People's witnesses and the veracity of the victim and, notably, obtained an acquittal on a count of the indictment charging defendant with striking or attempting to strike the victim. Although the defense was not entirely successful, we will not second-guess that reasonable strategy ( see People v. McCall, 75 A.D.3d 999, 1002, 906 N.Y.S.2d 394 [2010], lv. denied 15 N.Y.3d 894, 912 N.Y.S.2d 582, 938 N.E.2d 1017 [2010]; People v. Cruz, 61 A.D.3d 1111, 1112–1113, 876 N.Y.S.2d 240 [2009]; People v. Van Ness, 43 A.D.3d at 555, 840 N.Y.S.2d 250). Moreover, counsel made appropriate pretrial motions, delivered cogent opening and closing arguments, thoroughly cross-examined the People's witnesses and highlighted inconsistencies in the testimony to the jury. Viewing the record as a whole, defendant received meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998]; People v. Williamson, 77 A.D.3d 1183, 1185, 909 N.Y.S.2d 817 [2010] ).
ORDERED that the judgment is affirmed.