Opinion
No. 2013–1343SCR.
09-18-2015
The PEOPLE of the State of New York, Respondent, v. Peter MARCHETTI, Appellant.
Opinion
ORDERED that the judgment of conviction is affirmed.
Defendant and the complainant, who were neighbors, were involved in a long-running dispute regarding their property line. On May 9, 2009, the dispute turned physical. At a jury trial, the prosecution presented evidence that defendant stabbed the complainant in the left arm and chin with a metal garden trowel, and that defendant prevented two Suffolk County police officers from arresting him. Following the trial, the jury acquitted defendant of menacing in the second degree (Penal Law § 120.141 ); however, it convicted him of assault in the third degree (Penal Law § 120.001 ) and resisting arrest (Penal Law § 205.30).
Defendant claims that the District Court should have declared a mistrial, after the complainant blurted out evidence regarding a prior incident involving defendant and the complainant's domestic partner, which the court had determined was inadmissible. The argument lacks merit. The prosecutor did not intentionally elicit the complainant's response (see People v. White, 297 A.D.2d 587, 588 2002; cf. People v. Gilliard, 171 A.D.2d 531, 532 1991 ). Moreover, the court offered, but defendant's counsel declined, to provide the jury with a curative instruction to disregard the improper testimony, which instruction would have been sufficient to alleviate any prejudice based on the testimony regarding the earlier incident (see People v. Santiago, 52 N.Y.2d 865 1981; People v.. Young, 48 N.Y.2d 995 1980; People v. Caba, 101 AD3d 896, 897 2012; People v. Miller, 78 AD3d 733, 734 2010; People v. Johnson, 67 AD3d 560 2009; People v. Moret, 290 A.D.2d 250, 250–251 2002 ).
The District Court correctly declined to provide the jury with a justification charge pursuant to Penal Law § 35.25, whereby physical force may be used to prevent or terminate a larceny or criminal mischief. Viewing the evidence in the light most favorable to defendant, there was no reasonable view of the evidence supporting a conclusion that defendant used physical force to prevent or terminate a larceny (see People v. Velez, 198 A.D.2d 26, 27 1993; cf. People v. Verdon, 172 A.D.2d 863 1991 ). Alternatively, the use of a metal garden trowel allegedly to prevent the complainant, who was unarmed, from stealing defendant's property, constituted an excessive use of force, thereby precluding the defense of justification pursuant to Penal Law § 35.25 (see Matter of Y.K., 87 N.Y.2d 430, 433 1996; People v. Vecchio, 240 A.D.2d 854, 855 1997 ).
Defendant was afforded the effective assistance of trial counsel. He has not established that, when the evidence, the law, and the circumstances of the case are viewed together as of the time of the representation, trial counsel failed to provide meaningful representation (see People v. Baker, 14 NY3d 266, 270 2010; People v. Turner, 5 NY3d 476, 480 2005; People v. Caban, 5 NY3d 143, 152 2005; People v. Benevento, 91 N.Y.2d 708, 712 1998; People v. Baldi, 54 N.Y.2d 137, 146–147 1981; People v.. Bruno, 127 AD3d 1101 2015 ). Defendant failed to “demonstrate the absence of strategic or other legitimate explanations” for any alleged error, “rather than [defendant's] simple disagreement with strategies and tactics” (People v. Rivera, 71 N.Y.2d 705, 708–709 1988; see People v. Caban, 5 NY3d at 154). Defendant's claims of ineffective assistance constitute second-guessing of trial counsel's efforts “with the clarity of hindsight to determine how the defense might have been more effective” (People v. Benevento, 91 N.Y.2d at 712). Under the unique circumstances of this case, defendant's counsel pursued “a reasonable and legitimate strategy” (People v. Benevento, 91 N.Y.2d at 713; see People v. Berroa, 99 N.Y.2d 134, 138 2002; People v. Baldi, 54 N.Y.2d at 146).
Accordingly, the judgment of conviction is affirmed.
IANNACCI, J.P., TOLBERT and CONNOLLY, JJ., concur.