Opinion
455 KA 15–01680
05-03-2019
The PEOPLE of the State of New York, Respondent, v. Michael A. HEAD, Defendant–Appellant.
NANCY J. BIZUB, BUFFALO, FOR DEFENDANT–APPELLANT. LAWRENCE FRIEDMAN, SPECIAL DISTRICT ATTORNEY, BATAVIA, AND NEW YORK PROSECUTORS TRAINING INSTITUTE, INC., ALBANY (LAUREN D. KONSUL OF COUNSEL), FOR RESPONDENT.
NANCY J. BIZUB, BUFFALO, FOR DEFENDANT–APPELLANT.
LAWRENCE FRIEDMAN, SPECIAL DISTRICT ATTORNEY, BATAVIA, AND NEW YORK PROSECUTORS TRAINING INSTITUTE, INC., ALBANY (LAUREN D. KONSUL OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of assault in the second degree ( Penal Law § 120.05[3], [7] ). Defendant's conviction stems from an altercation he had with correction officers while he was an inmate at a correctional facility. Defendant contends that County Court erred in ordering that defendant's inmate witnesses remain shackled while testifying without giving a reason for such restraints and without providing any curative instructions to the jury. As defendant correctly concedes, he did not preserve his contention for our review (see CPL 470.05[2] ; see generally People v. Cooke, 24 N.Y.3d 1196, 1197, 3 N.Y.S.3d 755, 27 N.E.3d 469 [2015], cert denied ––– US ––––, 136 S Ct 542, 193 L.Ed.2d 434 [2015] ; People v. Rouse, 79 N.Y.2d 934, 935, 582 N.Y.S.2d 986, 591 N.E.2d 1172 [1992] ; People v. Morales, 132 A.D.3d 1410, 1410, 17 N.Y.S.3d 259 [4th Dept. 2015], lv denied 27 N.Y.3d 1072, 38 N.Y.S.3d 843, 60 N.E.3d 1209 [2016] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). We reject defendant's contention that he was denied effective assistance of counsel on the ground that defense counsel failed to preserve this issue for our review. Defendant failed " ‘to demonstrate the absence of strategic or other legitimate explanations’ for counsel's allegedly deficient conduct" ( People v. Atkins, 107 A.D.3d 1465, 1465, 967 N.Y.S.2d 318 [4th Dept. 2013], lv denied 21 N.Y.3d 1040, 972 N.Y.S.2d 537, 995 N.E.2d 853 [2013], quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ). Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude 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] ).
We reject defendant's contention that the evidence is legally insufficient because the People failed to disprove his justification defense. Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the evidence is legally sufficient to disprove the justification defense (see People v. Williams, 134 A.D.3d 1572, 1573, 23 N.Y.S.3d 780 [4th Dept. 2015] ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). In addition, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).