Opinion
1081 KA 17-01969
11-20-2020
The PEOPLE of the State of New York, Respondent, v. Quashar NEIL, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (WILLIAM G. PIXLEY OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (WILLIAM G. PIXLEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND DEJOSEPH, 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, inter alia, attempted murder in the first degree ( Penal Law §§ 110.00, 125.27 [1] [a] [i] ; [b] ). Defendant contends that he was denied effective assistance of counsel based on defense counsel's failure to clear up the misimpression, which defense counsel created, that defendant was involved in a similar crime one month prior to the subject crime. Defendant also contends that he was denied effective assistance of counsel based on defense counsel's cross-examination of the expert fingerprint examiners about whether their work was verified. We reject those contentions because defendant failed to meet his burden of showing "the absence of strategic or other legitimate explanations for counsel's challenged actions" ( People v. Lopez-Mendoza , 33 N.Y.3d 565, 572, 106 N.Y.S.3d 266, 130 N.E.3d 862 [2019] [internal quotation marks omitted]; see People v. Ambers , 26 N.Y.3d 313, 320, 22 N.Y.S.3d 400, 43 N.E.3d 757 [2015] ; People v. Norman , 183 A.D.3d 1240, 1242, 123 N.Y.S.3d 360 [4th Dept. 2020], lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 855, 151 N.E.3d 537 [2020] ). Defendant's contention that he was denied a fair trial by prosecutorial misconduct on summation is unpreserved for appellate review, and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see People v. Rogers , 186 A.D.3d 1046, 1049, 129 N.Y.S.3d 227 [4th Dept. 2020] ). Furthermore, even assuming, arguendo, that an objection by defense counsel to the conduct in question would have had a chance of success (see generally People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ), we conclude that the failure of defense counsel to object to the prosecutor's isolated comment, which "was not so egregious or improper as to deny defendant a fair trial ..., did not render defense counsel ineffective" ( People v. Kilbury , 83 A.D.3d 1579, 1580, 921 N.Y.S.2d 432 [4th Dept. 2011], lv denied 17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806 [2011] [internal quotation marks omitted] ). Upon our review of the record, we conclude that "the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that [defendant's] attorney provided meaningful representation" ( 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 he was deprived of a fair trial based on the cumulative effect of the alleged errors. Finally, the sentence is not unduly harsh or severe.