Opinion
1337 KA 15–02050
12-21-2018
The PEOPLE of the State of New York, Respondent, v. Anthony S. ORTIZ, Defendant–Appellant.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, CARNI, AND TROUTMAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of murder in the second degree ( Penal Law § 125.25[1] ), assault in the second degree (§ 120.05[2] ), and two counts of criminal possession of a weapon in the second degree (§ 265.03[1][b]; [3] ), defendant contends that he was deprived of effective assistance of counsel because defense counsel failed to ask County Court to instruct the jury on a justification defense and objected to the prosecutor's request that the jury be charged with manslaughter in the first degree (§ 125.20[1] ) as a lesser included offense of murder in the second degree. We reject that contention."[I]t is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations" for defense counsel's allegedly deficient conduct ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ), and defendant failed to meet that burden here (see People v. Hicks, 110 A.D.3d 1488, 1489, 972 N.Y.S.2d 800 [4th Dept. 2013], lv denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014] ). Although there was a reasonable view of the evidence that defendant was justified in shooting one of the victims, who was chasing defendant as he fled a violent brawl, defense counsel chose instead to pursue a misidentification defense. "Each defense theory available to defendant posed its own challenges, and the choice of one, instead of the other, was not ‘determinative of the verdict’ " ( People v. Clark, 28 N.Y.3d 556, 564, 46 N.Y.S.3d 817, 69 N.E.3d 604 [2016], quoting People v. Petrovich, 87 N.Y.2d 961, 963, 641 N.Y.S.2d 592, 664 N.E.2d 503 [1996] ). Further, "the misidentification theory had the potential to achieve defendant's acquittal on all charges," whereas a successful justification defense under the circumstances here "would only have resulted in acquittal on the murder charge" ( id. ). Therefore, defense counsel's decision to advance the misidentification defense "was consistent with strategic decisions of a reasonably competent attorney" ( Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [internal quotation marks omitted] ). Defendant also failed to demonstrate the lack of a strategic basis for defense counsel's alleged ineffectiveness in objecting to the prosecutor's request that the jury be instructed on the lesser included offense of manslaughter in the first degree (see generally People v. Malaussena, 44 A.D.3d 349, 350, 842 N.Y.S.2d 444 [1st Dept. 2007], affd 10 N.Y.3d 904, 861 N.Y.S.2d 609, 891 N.E.2d 725 [2008] ). Thus, we conclude that "the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation," establish that defendant received meaningful representation ( People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Finally, the sentence is not unduly harsh or severe.