Opinion
2012-10-25
The PEOPLE of the State of New York, Respondent, v. William D. JORDAN, Appellant.
Benjamin K. Bergman, Binghamton, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), for respondent.
Benjamin K. Bergman, Binghamton, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), for respondent.
Before: ROSE, J.P., SPAIN, KAVANAGH, STEIN and McCARTHY, JJ.
STEIN, J.
Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered December 16, 2010, upon a verdict convicting defendant of the crimes of murder in the second degree and assault in the first degree.
Defendant was involved in a physical altercation with the victim outside a bar, during which defendant allegedly stabbed the victim with an ice pick, causing his death. Defendant was indicted for murder in the second degree and assault in the first degree. After a jury trial, defendant was found guilty as charged. Defendant now appeals and we affirm.
Defendant's contentions regarding several alleged acts of misconduct by the prosecutor during the course of the trial and in his summation are not preserved for our review because no objections were raised with regard thereto before County Court ( seeCPL 470.05[2]; People v. Mosher, 94 A.D.3d 1231, 1233, 942 N.Y.S.2d 655 [2012],lv. denied19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921 [2012];People v. Westervelt, 47 A.D.3d 969, 974, 850 N.Y.S.2d 226 [2008],lv. denied10 N.Y.3d 818, 857 N.Y.S.2d 51, 886 N.E.2d 816 [2008] ). Nor do we find, after reviewing the record, that the acts complained of warrant corrective action in the exercise of our interest of justice jurisdiction. Inasmuch as there was overwhelming proof of defendant's guilt and there is no significant probability that the jury would have acquitted defendant had it not been for the claimed errors that occurred, none of the acts-nor all taken in combination-even if improper, were so prejudicial as to deprive defendant of a fair trial ( see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975];People v. Head, 90 A.D.3d 1157, 1158, 933 N.Y.S.2d 774 [2011];People v. Manning, 81 A.D.3d 1181, 1184, 917 N.Y.S.2d 721 [2011],lv. denied18 N.Y.3d 959, 944 N.Y.S.2d 488, 967 N.E.2d 713 [2012];People v. Westervelt, 47 A.D.3d at 974, 850 N.Y.S.2d 226).
We find no merit to defendant's contention that he was denied the effective assistance of counsel. Defendant was not entitled to a perfect trial ( see People v. Wiltshire, 96 A.D.3d 1227, 1228, 947 N.Y.S.2d 199 [2012];People v. Elwood, 80 A.D.3d 988, 990, 915 N.Y.S.2d 694 [2011],lv. denied16 N.Y.3d 858, 923 N.Y.S.2d 420, 947 N.E.2d 1199 [2011] ). In any event, defendant has not demonstrated the absence of strategic or other legitimate explanations for counsel's alleged deficiencies with regard to his questioning on direct examination and failure to object to certain questions posed, and statements made, by the prosecutor ( see People v. Kuforiji, 88 A.D.3d 1165, 1166, 931 N.Y.S.2d 433 [2011] ). Nor does counsel's failure to preserve defendant's prosecutorial misconduct argument establish ineffective assistance under the circumstances here ( see People v. Wiltshire, 96 A.D.3d at 1229, 947 N.Y.S.2d 199;People v. Elwood, 80 A.D.3d at 990, 915 N.Y.S.2d 694).
Moreover, defense counsel engaged in proper motion practice, conducted substantial cross-examination of the People's witnesses, thoroughly examined defendant on direct examination, made numerous timely objections and presented a cogent defense theory, despite overwhelming evidence of defendant's guilt. Viewing the evidence, the law and the circumstances of the case in totality and as of the time of the representation, we are satisfied that defendant was provided 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. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981];People v. Wiltshire, 96 A.D.3d at 1230, 947 N.Y.S.2d 199;People v. Nguyen, 90 A.D.3d 1330, 1335, 935 N.Y.S.2d 195 [2011],lv. denied18 N.Y.3d 960, 944 N.Y.S.2d 489, 967 N.E.2d 714 [2012];compare People v. Miller, 63 A.D.3d 1186, 880 N.Y.S.2d 383 [2009] ).
Defendant's remaining contentions have been examined and are unavailing.
ORDERED that the judgment is affirmed.