NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT
November 13, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JAMELL LEWIS, APPELLANT.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered October 12, 2005. The judgment convicted defendant, after a non-jury trial, of murder in the second degree.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 6, 2010
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
The sole contention of defendant in this appeal from a judgment convicting him following a non-jury trial of murder in the second degree (Penal Law § 125.25 ) is that he was denied effective assistance of counsel. We reject that contention (see generally People v Flores, 84 NY2d 184, 186-187 ; People v Baldi, 54 NY2d 137, 147 ). Defense counsel's failure to make various motions that had little or no chance of success does not constitute ineffective assistance of counsel (see People v McDuffie, 46 AD3d 1385, 1386 , lv denied 10 NY3d 867 ; People v Dashnaw, 37 AD3d 860, 863 , lv denied 8 NY3d 945 ; People v Johnson, 11 AD3d 979, 979-980 , lv denied 3 NY3d 757 ). In addition, defense counsel's failure to object to County Court's Sandoval ruling or to seek a compromise ruling did not constitute ineffective assistance of counsel inasmuch as the court in this non-jury trial " 'is presumed to have evaluated the evidence [of defendant's past criminal conduct] only for the purpose of impeaching . . . defendant's credibility and not as evidence of guilt of the crime charged' " (People v Maryon, 20 AD3d 911, 913 , lv denied 5 NY3d 854 ).
Contrary to defendant's further contention, neither defense counsel's failure to object to the prosecutor's allegedly improper remarks during summation nor defense counsel's limited cross-examination of certain witnesses deprived defendant of effective assistance of counsel, particularly in the context of this non-jury trial (see Maryon, 20 AD3d at 913; see also People v Walker, 50 AD3d 1452, 1453 , lv denied 11 NY3d 795 , denied reconsideration 11 NY3d 931 ).
Present---Martoche, J.P., Smith, Peradotto, Green and Pine, JJ.
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