Opinion
12-06-2016
The PEOPLE of the State of New York, Respondent, v. David SHEARD, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. David Sheard, appellant pro se. Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
David Sheard, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.
RICHTER, J.P., MANZANET–DANIELS, FEINMAN, KAPNICK, GESMER, JJ.
Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered April 3, 2013, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to an aggregate term of seven years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). We find no basis for disturbing the jury's credibility findings.
There is no merit to defendant's claim that he was deprived of his right to call his codefendant as a witness. The court made it clear that it would permit the codefendant to testify if the defense wished to call him. Although defendant “vehemently” wanted his codefendant to testify on his behalf, defendant's trial counsel made a decision, in the exercise of professional judgment, not to call this witness. “If defense counsel solely defers to a defendant, without exercising his or her professional judgment, on a decision that is for the attorney, not the accused, to make because it is not fundamental, the defendant is deprived of the expert judgment of counsel to which the Sixth Amendment entitles him or her” (People v. Hogan, 26 N.Y.3d 779, 786, 28 N.Y.S.3d 1, 48 N.E.3d 58 [2016] [internal quotation marks omitted] ). Whether to call a witness is a strategic decision to be made by defense counsel (see People v. Smith, 82 N.Y.2d 731, 733, 602 N.Y.S.2d 322, 621 N.E.2d 689 [1993] ; People v. Llanos, 13 A.D.3d 76, 785 N.Y.S.2d 83 [1st Dept.2004], lv. denied 4 N.Y.3d 833, 796 N.Y.S.2d 588, 829 N.E.2d 681 [2005] ). Moreover, counsel had a sound reason for not calling the codefendant, who, in his plea allocution, had implicated defendant in the drug sale. To the extent defendant is claiming ineffective assistance of counsel, that claim is likewise without merit (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).
We perceive no basis for reducing the sentence.
We have considered and rejected defendant's pro se claims.