Opinion
2012-08-22
The PEOPLE, etc., respondent, v. John LEATH, appellant.
Robert DiDio, Kew Gardens, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel), for respondent.
Robert DiDio, Kew Gardens, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered October 28, 2009, convicting him of murder in the second degree and tampering with physical evidence, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that he was deprived of the effective assistance of counsel. “Under the New York Constitution, ‘[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met’ ” ( People v. Collado, 90 A.D.3d 672, 672–673, 933 N.Y.S.2d 738, quoting People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Bowles, 89 A.D.3d 171, 932 N.Y.S.2d 112). “[I]neffectiveness claims must be viewed within the context of the fairness of the process as a whole rather than its particular impact on the outcome of the case” ( People v. Clermont, 95 A.D.3d 1349, 1351, 945 N.Y.S.2d 349;see People v. Benevento, 91 N.Y.2d at 714, 674 N.Y.S.2d 629, 697 N.E.2d 584). “ Isolated errors in counsel's representation generally will not rise to the level of ineffectiveness, unless the error is ‘so serious that defendant did not receive a fair trial’ ” ( People v. Henry, 95 N.Y.2d 563, 565–566, 721 N.Y.S.2d 577, 744 N.E.2d 112, quoting People v. Flores, 84 N.Y.2d 184, 188–189, 615 N.Y.S.2d 662, 639 N.E.2d 19 [internal quotation marks omitted]; see People v. Collado, 90 A.D.3d at 673, 933 N.Y.S.2d 738). Here, contrary to the defendant's contention, he was not deprived of the effective assistance of counsel. Viewed in totality, defense counsel provided meaningful representation ( see People v. Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Baldi, 54 N.Y.2d at 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Moreover, the Supreme Court properly declined to charge manslaughter in the second degree as a lesser-included offense of murder in the second degree. There was no reasonable view of the evidence that would support a finding that the defendant acted recklessly in causing the victim's death ( see People v. Pizarro, 89 A.D.3d 871, 932 N.Y.S.2d 355;People v. Davis, 300 A.D.2d 673, 674, 751 N.Y.S.2d 887).
Further, there is no merit to the defendant's contention that the Supreme Court erred in permitting the prosecution to elicit hearsay testimony from a witness relating to the defendant's motive, as this testimony was admissible under the “state-of-mind” exception to the hearsay rule ( see People v. Damon, 78 A.D.3d 860, 911 N.Y.S.2d 127;People v. Jean–Baptiste, 51 A.D.3d 1037, 1038, 858 N.Y.S.2d 388;People v. Rose, 41 A.D.3d 742, 742–743, 840 N.Y.S.2d 363).
The defendant's contention, raised in point 5 of his brief, is without merit. The defendant's remaining contentions are unpreserved for appellate review, and, in any event, without merit.