SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts
December 10, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from a judgment of the City Court of New Rochelle, Westchester County (Preston S. Scher, J.), rendered July 29, 2010.
People v Ayton (Tahir)
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: LaCAVA, J.P., IANNACCI and LaSALLE, JJ
The judgment convicted defendant, upon a jury verdict, of resisting arrest and obstructing governmental administration in the second degree.
ORDERED that the judgment of conviction is affirmed.
Following a jury trial, defendant was convicted of resisting arrest (Penal Law § 205.30) and obstructing governmental administration in the second degree (Penal Law § 195.05). The sole issue raised by defendant on appeal is that he received the ineffective assistance of counsel. The proof at trial demonstrated that an incident had taken place between defendant and parole officers, in the parole office, during defendant's scheduled visit. After the parole officers had taken defendant to the bathroom so that he could provide a second urine sample, defendant failed to provide the sample while at least one officer was standing behind him. Since defendant was fidgeting with his waistband, and the officer could not see defendant's hands, the officer repeatedly told defendant to let him see his hands, but defendant failed to comply. The officer then attempted to search defendant, but defendant obstructed his attempts and subsequently flailed his arms and kicked his legs.
Although defendant's trial attorney did not individually ask every prospective juror whether he or she could be fair and impartial if he or she learned that defendant had a criminal history, the record indicates that the prospective jurors were made aware that the charges stemmed from an altercation between defendant and parole officers, and each empaneled juror indicated that he or she could be fair and impartial. Consequently, defendant has failed to show that his attorney's representation of him during jury selection fell below the requisite level of effective assistance (see e.g. People v Turner, 37 AD3d 874 ).
Contrary to defendant's contention, the fact that his trial attorney referred to defendant's criminal history several times throughout the trial did not exacerbate the prejudicial impact of such history. In view of the fact that the charges against defendant stemmed from an incident during his visit to his parole officer, the fact that the City Court had made Molineux and Sandoval rulings that allowed the People to present evidence of defendant's criminal history, and the fact that defendant intended to testify at trial, defendant's trial attorney did not inappropriately pursue a trial strategy of presenting defendant's criminal history to the jury before the People had an opportunity to do so. Moreover, contrary to defendant's contention, the strategy of his trial attorney to argue that the parole officer was not authorized, without a warrant, to arrest defendant for a parole violation, even if the violation was committed in the parole officer's presence (see People v Bratton, 8 NY3d 637 ; Executive Law § 259-i  [a] [i]), was not based on an erroneous interpretation of the applicable law. Rather, this theory of the case was merely based on a different interpretation of the facts from the People's theory, to the effect that the parole officer was authorized to arrest defendant without a warrant since defendant was not arrested for a parole violation. Defendant has not shown the absence of any legitimate explanation for his trial attorney's pursuit of the aforementioned defense strategies, and a simple, hindsight disagreement with trial tactics or strategy is insufficient to establish a lack of meaningful representation (see People v Baker, 14 NY3d 266, 270-271 ; People v Benevento, 91 NY2d 708, 712-713 ).
At trial, when defendant's attorney asked defendant "Did you and I prepare your testimony today," defendant replied "No, I did not." Notwithstanding the foregoing, defendant failed to demonstrate that such a failure to prepare defendant for his testimony prejudiced his defense (see Jones v Conway, 442 F Supp 2d 113 [SD NY 2006]). Defendant did not show that additional consultation with his attorney would have altered his defense (see United States v Wilson, 216 F3d 1074 [2d Cir 2000]; Jones v Conway, 442 F Supp 2d 113; Lou v Mantello, 2001 WL 1152817, *10 [ED NY 2001]). In any event, a review of the record indicates that defendant's testimony adequately presented his defense. Defendant's remaining arguments similarly lack merit.
In view of the foregoing, we find that defendant's attorney provided defendant with meaningful representation in accordance with the New York State standard (see NY Const, art I, § 6; People v Ford, 86 NY2d 397 ; People v Johnson, 71 AD3d 1048 ). Moreover, the attorney'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 US 688 ).
Accordingly, the judgment of conviction is affirmed.
LaCava, J.P., Iannacci and LaSalle, JJ., concur.
Decision Date: December 10, 2012
© 1992-2012 VersusLaw Inc.