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The People of the State of New York, Respondent v. Shlomo Sabag

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


April 8, 2013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, --
v.
SHLOMO SABAG, APPELLANT.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Alexander B. Jeong, J.), rendered May 13, 2010.

People v Sabag (Shlomo)

Decided on April 8, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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: PESCE, P.J., RIOS and SOLOMON, JJ

The judgment convicted defendant, after a non-jury trial, of attempted assault in the third degree (two counts), menacing in the third degree (two counts), attempted criminal mischief in the fourth degree, harassment in the second degree (two counts), and attempted criminal possession of a weapon in the fourth degree.

ORDERED that the judgment of conviction is affirmed.

Defendant was convicted, following a non-jury trial, of attempted assault in the third degree (two counts) (Penal Law §§ 110.00, 120.00), menacing in the third degree (two counts) (Penal Law § 120.15), attempted criminal mischief in the fourth degree (Penal Law §§ 110.00, 145.00), harassment in the second degree (two counts) (Penal Law § 240.26), and attempted criminal possession of a weapon in the fourth degree (Penal Law §§ 110.00, 265.01), resulting from an incident occurring during the afternoon of October 27, 2008 on a street outside a Brooklyn locksmith supply store. The People presented evidence that defendant had been a partner with the complainants in a locksmith business. The partnership, to the dismay of defendant, had broken up several months earlier. The complainants subsequently formed their own locksmith business. On October 27, 2008, defendant and a co-defendant approached the complainants, who were in the process of placing merchandise in a car after purchasing locksmith supplies. Defendant punched one of the complainants, and the co-defendant repeatedly hit the other complainant on the head with a large, heavy flashlight. The complainants sustained injuries which required treatment at a hospital.

Defendant and the co-defendant were represented by the same attorney throughout the proceedings. On appeal, defendant claims that he was denied the effective assistance of trial counsel based on the dual representation, because there was a conflict in the potential defenses of the two defendants. He further contends that he required the assistance of a Hebrew interpreter. It is undisputed that the trial court conducted an inquiry pursuant to People v Gomberg (38 NY2d 307 [1975]) without a Hebrew interpreter present.

Defendant further asserts that he was deprived of the effective assistance of trial counsel because, among other things, his counsel failed to object to the filing of a second accusatory instrument; to offer in evidence a written statement made by the co-defendant to the police, which allegedly tended to exculpate defendant; to present evidence corroborating defendant's testimony that one of the complainants had previously threatened him, including a filed police report; to call witnesses to the incident who would testify in a favorable manner; to object to the prosecutor's leading and compound questions; to object to further direct examination of one of the complainants after a lunch break, after the prosecutor had indicated before the break that he had no further questions; to request a missing witness charge with respect to the non-testifying complainant; and to object to the admission into evidence of the medical records of the non-testifying complainant that contained a hearsay statement made at the hospital that he had been attacked with a flashlight.

Finally, defendant contends that the sentence imposed was excessive.

After an extensive Gomberg inquiry, defendant, in English, informed the trial court, on the record, that after a full discussion with counsel, he wanted counsel to continue to represent him, notwithstanding any potential conflict. Under these circumstances, the fact that defendant and the co-defendant were represented by the same attorney at the trial did not deprive defendant of the effective assistance of trial counsel (see People v Taylor, 52 AD3d 1327, 1328 [2008]; People v Floyd, 45 AD3d 1457, 1459 [2007]; People v Walker, 2 AD3d 1358, 1359 [2003]; People v Smith, 306 AD2d 858, 860 [2003]; People v Griffin, 249 AD2d 244, 245 [1998]; People v Miller, 187 AD2d 930, 930-931 [1992]). Moreover, defendant has failed to establish that there was a significant possibility that any conflict operated to adversely affect the defense or bore a substantial relationship to the representation (see People v Konstantinides, 14 NY3d 1, 10 [2009]; People v Harris, 99 NY2d 202, 211 [2002]; People v Ortiz, 76 NY2d 652, 657 [1990]; People v Recupero, 73 NY2d 877, 878 [1988]; People v Cordero, 78 AD3d 859 [2010]; People v Floyd, 45 AD3d at 1460; People v Rocco, 229 AD2d 599, 600 [1996]).

Defendant's claim that reversal is required because he did not have the services of a Hebrew interpreter when the court conducted the Gomberg inquiry, and his claim that he was denied the effective assistance of trial counsel because counsel did not request that the interpreter be present during the inquiry, are without merit. There was no evidence that defendant was unable to understand the proceedings or to communicate with his counsel due to a language barrier (see People v Ramos, 26 NY2d 272, 274-275 [1970]; People v Perez, 95 AD3d 780 [2012]; People v Rivera, 15 AD3d 859, 860 [2005]; People v Gamal, 148 AD2d 468 [1989]).

Contrary to defendant's contention, both the original accusatory instrument, dated November 3, 2008, and the second accusatory instrument, dated December 2, 2008, charged defendant and his co-defendant with acting in concert. Accordingly, counsel's failure to object to the filing of a second accusatory instrument, which superseded the original accusatory instrument (see CPL 100.50 [1]; People v Thomas, 4 NY3d 143, 147-148 [2005]), did not constitute ineffective assistance of counsel.

Defendant's contention that trial counsel was ineffective because he failed to offer in evidence a statement made by the co-defendant to the police that was allegedly exculpatory to defendant is without merit. The statement indicated, among other things, that one of the complainants had blood on his face and defendant has failed to establish the absence of a "strategic or other legitimate explanation[]" for counsel's allegedly deficient conduct (People v Rivera, 71 NY2d 705, 709 [1988]; see People v Baker, 14 NY3d 266, 270-271 [2010]; cf. People v Jeannot, 59 AD3d 737 [2009]).

The medical records of the non-testifying complainant were properly admitted into evidence and, thus, counsel was not ineffective for ultimately failing to object to their admission, as the statement contained in the records was "germane to the patient's subsequent medical treatment and diagnosis" (People v Rogers, 8 AD3d 888, 892 [2004]) and "limited to the nature of [his] injuries and the means by which they were sustained," and the perpetrators were not identified (People v Blackman, 90 AD3d 1304, 1309 n 3 [2011]). Consequently, the records were admissible under the business records exception to the hearsay rule (see CPLR 4518 [a]).

Defendant was not deprived of the effective assistance of trial counsel due to, among other things, counsel's failure to object to certain leading questions which the prosecutor asked the testifying complainant, and to further direct examination of the witness after a lunch break, after the prosecutor had indicated before the break that he had no further questions. Where "the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation," counsel's performance will not be found ineffective (People v Baldi, 54 NY2d 137, 147 [1981]; see People v Caban, 5 NY3d 143, 152 [2005]; People v Yagudayev, 91 AD3d 888, 890 [2012]). In this case, counsel was able to have the charges against defendant, which included several class "A" misdemeanors, reduced to class "B" misdemeanors, thereby limiting defendant's potential jail time. Counsel presented a justification defense through defendant's testimony, and segregated the roles of defendant and the co-defendant. The court agreed to counsel's request that it consider a nonlethal justification defense. Counsel argued during summation that there was no evidence corroborating the testifying complainant's account, and that, as defendant's testimony was at least as credible as that of the testifying complainant, defendant's guilt was not established beyond a reasonable doubt. At sentencing, counsel extensively argued for a sentence that did not include incarceration, noting that defendant had no prior criminal record, and that he had an infant son. In view of the foregoing, the record demonstrates that defendant was afforded meaningful representation.

Defendant's claim that he was deprived of the effective assistance of trial counsel because counsel did not present evidence corroborating defendant's testimony that one of the complainants had previously threatened him, including a filed police report; did not call witnesses to the incident at trial who would testify in a favorable manner; and failed to request a missing witness charge with respect to the non-testifying complainant do not appear on the record and cannot be determined on direct appeal (see People v McLean, 15 NY3d 117, 121 [2010]). We note that, with respect to the missing witness charge claim, that there is nothing on the record regarding the whereabouts of the non-testifying complainant, and whether he was within the control of the People (see People v Savinon, 100 NY2d 192, 197-198 [2003]; People v Gonzalez, 68 NY2d 424, 428 [1986]; People v Marino, 21 AD3d 430, 432-433 [2005]; see also People v Wright, 77 AD3d 691 [2010]).

We further find that defendant's sentence was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

Defendant's remaining contentions are without merit.

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: April 08, 2013

20130408

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