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The People of the State of New York v. John Perl


August 1, 2011


Appeals (1) from a judgment of the City Court of Yonkers, Westchester County (Mary Anne Scatteretico-Naber, J.), rendered July 27, 2009, and (2), by permission, from an order of the same court dated April 29, 2010. The judgment convicted defendant, after a non-jury trial, of assault in the third degree. The order denied, without a hearing, defendant's motion to vacate the judgment of conviction.

People v Perl (John)

Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 1, 2011


ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further, ORDERED that the judgment of conviction and the order are affirmed.

After a non-jury trial, defendant was convicted of assault in the third degree (Penal Law § 120.00 [1]) and acquitted of harassment in the second degree (Penal Law § 240.26 [1]). The charges arose from an incident in which defendant struck his cousin with his fist, causing her physical injury and substantial pain. After the trial, defendant moved to vacate the judgment of conviction pursuant to CPL 440.10, alleging the ineffectiveness of trial counsel. Defendant identified numerous alleged derelictions, including, but not limited to, counsel's erroneous advice that defendant could not rescind a waiver of his right to a jury trial, executed at the recommendation of his prior counsel; counsel's failure properly to seek the trial judge's recusal based on her alleged hostility and bias toward a defense witness; counsel's failure to move to dismiss the accusatory instruments on statutory speedy trial grounds; counsel's failure to seek a missing witness charge in relation to the People's failure to produce the complainant's mother who had allegedly witnessed the assault; counsel's failure to object that the verdict was repugnant; and counsel's failure adequately to argue the defense of justification and the lack of evidence to establish defendant's intent to assault the complainant. The City Court denied the motion, without a hearing, finding that its conduct with respect to the defense witness was merely to correct a mischaracterization of a remark attributed by the witness to the court at a prior proceeding, and that it neither displayed nor entertained any bias toward the witness. The City Court further found that the remaining issues were "without merit."

The CPL 440.10 motion was properly denied without a hearing (CPL 440.30 [4] [b]). Only the claims regarding the alleged erroneous advice as to whether a jury trial waiver may be rescinded and the court's failure to recuse itself involved assertions of fact occurring dehors the record (CPL 440.10 [2] [b]). As to those claims, even if, as defendant insists, his trial counsel erroneously advised him that he could not rescind his waiver of the right to a jury trial (see People v McQueen, 52 NY2d 1025 [1981]), that he wished to rescind the waiver, and that this advice "implicates his relationship with his trial attorney" (People v Magnano, 158 AD2d 979 [1990], affd on mem below 77 NY2d 941 [1991]), defendant failed to allege a triable issue as to the waiver. The grant of a motion to rescind a jury trial waiver is not automatic; rather, it is relegated to the sound exercise of the court's discretion (People v McQueen, 52 NY2d at 1026). Defendant failed to allege any reason why he had changed his position as to the desirability of a jury trial, and his bare allegation that his prior counsel had advised him that it was in his best interest to waive the right and that his trial counsel had disagreed with that advice is insufficient to support the legal claim asserted in that he has not alleged a triable issue of fact which, if proved at a hearing, would have established that the CPL 440.10 motion might have been successful (CPL 440.30 [4] [b]; see People v Caban, 5 NY3d 143, 152 [2005]; see generally People v Miller, 149 Misc 2d 554 [Sup Ct, NY County 1990]).

With respect to the remaining claim cognizable under the CPL 440.10 motion, we note that "[r]ecusal, as a matter of due process, is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion . . . or where a clash in judicial roles is seen to exist" (People v Alomar, 93 NY2d 239, 246 [1999]), and, "[a]bsent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal" (People v Moreno, 70 NY2d 403, 405 [1987]; see also People ex rel. Smulczeski v Smulczeski, 18 AD3d 785, 786 [2005]; People v Washington, 11 Misc 3d 130[A], 2006 NY Slip Op 50312[U] [App Term, 9th & 10th Jud Dists 2006]). A court's determination to decline recusal "will not be lightly overturned" (Matter of Khan v Dolly, 39 AD3d 649, 650 [2007]). Defendant points to no statutory basis for the court's disqualification, and the facts support no inference of the sort of interest on the part of the trial judge that would invite a particular outcome in this case (id. at 651; see also Matter of Montesdeoca v Montesdeoca, 38 AD3d 666, 667 [2007]). The court was fully cognizant of the events preceding the witness's statement and there is nothing in the record that contradicts, or militates against, the court's conclusion that it neither held nor exhibited bias against the witness.

The claims of ineffective assistance of counsel appearing on the record, and properly raised on the appeal from the judgment, do not constitute reversible error. Insofar as defendant claims that his attorney failed to make a speedy trial motion, the record establishes that the People declared their readiness for trial at defendant's arraignment, and, upon a review of the record of adjournments, we find that all the adjournments were at defendant's request or on consent. The People requested a post-readiness two-week adjournment to obtain necessary evidence, for which they were properly charged. However, the remainder of the adjournment, until trial commenced, was at the court's direction, which time is not chargeable to the People (People v Cortes, 80 NY2d 201, 210 [1992]; see also People v Bailey, 221 AD2d 296 [1995]). "A defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion . . . that has little or no chance of success" (People v Stultz, 2 NY3d 277, 287 [2004]).

The representation of counsel must satisfy "an objective standard of reasonableness" (People v Turner, 5 NY3d 476, 480 [2005], quoting Strickland v Washington, 466 US 668, 688 [1984]). The representation need not be errorless (People v Modica, 64 NY2d 828, 829 [1985]), and the analysis of an ineffectiveness claim must "avoid confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis" (People v Baldi, 54 NY2d 137, 146 [1981]). Further, while "[a] single error may qualify as ineffective assistance," ineffectiveness on that basis will be inferred "only when the error is sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial" (People v Caban, 5 NY3d 143, 152 [2005]). Under the New York State standard, counsel must provide "meaningful" representation, the determination of which requires that "the evidence, the law, and the circumstances of a particular case, [be] viewed in totality and as of the time of the representation" (People v Baldi, 54 NY2d at 147).

Upon being retained, counsel asked for a lengthy adjournment to permit himself to become acquainted with the relevant facts and law. He cross-examined the complainant carefully, avoiding too confrontational an approach but carefully eliciting facts helpful to the defense. Counsel developed a defense that was consistent with the facts developed by the People, presenting two witnesses in addition to defendant, who testified consistently with the defense theories of justification and lack of intent. Counsel emphasized the antagonistic atmosphere that prevailed in the period before the altercation, offered a theory that defendant had been struck first, that his reaction was justified and that, at the very least, defendant had no intent to injure the complainant. Counsel offered a closing statement that was coherent and consistent with the trial proof as developed by both sides. His options in conducting the defense were limited in light of the complainant's injuries, the hospital records, the complainant's rather vivid and compelling testimony, and the arresting officer's own observations of the appearance of the complainant shortly after the incident concluded. Trial counsel's alleged derelictions are without legal merit or harmless given that the trial was before the court and the proof of guilt was overwhelming. Thus, upon this record, we find that the representation of trial counsel was meaningful under the New York State standard. Moreover, counsel's performance could not be characterized as either deficient or prejudicial to defendant and, thus, was also in accordance with the federal standard (see US Const Amend VI; Strickland v Washington, 466 U.S. 688 [1984]; People v Garrett, 68 AD3d 781 [2009]).

With respect to the proof, viewed in the light most favorable to the People (People v Contes, 60 NY2d 220, 221 [1983]), we find that the evidence established defendant's guilt beyond a reasonable doubt. The complainant's testimony was internally coherent, consistent with facts adduced by other witnesses (and, to an extent, by defendant's own testimony), and corroborated by medical evidence.

In fulling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490 [1987]). Upon a review of the record, we are satisfied that the conviction of assault in the third degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

We have considered defendant's remaining claims of error and find them to be without merit (People v Savinon, 100 NY2d 192 [2003]; People v Tucker, 55 NY2d 1 [1981]; People v Moyer, 27 NY2d 252 [1970]).

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.

Decision Date: August 01, 2011


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