Calendar Date: January 17, 2018
& Rounds Attorneys at Law, LLP, Kingston (Bryan E. Rounds
of counsel), for appellant.
Kovacs, Special Prosecutor, Kingston, for respondent.
Before: Egan Jr., J.P., Devine, Mulvey, Aarons and Rumsey,
MEMORANDUM AND ORDER
from a judgment of the County Court of Ulster County
(Williams, J.), rendered May 25, 2012, upon a verdict
convicting defendant of the crimes of burglary in the first
degree (three counts) and assault in the second degree.
2011, defendant received a telephone call from his son
indicating that he had gotten into a fight at a house party
and needed a ride home. Defendant and his friend, Ralph
Layton, then drove over and picked up defendant's son a
few blocks away from the residence where the fight had taken
place. Rather than drive his son home, defendant, along with
Layton and defendant's son, returned to the location
where the fight occurred, kicked open the front door of the
residence and stormed upstairs to confront the son's
teenage assailant (hereinafter the victim) in his bedroom.
After defendant's son identified the victim as the person
with whom he had fought, defendant, a competitive
bodybuilder, proceeded to strike the victim in the forehead
with a heavy, 12-to-18-inch long Maglite flashlight.
October 2011, defendant was charged in a four-count
indictment with three counts of burglary in the first degree
and one count of assault in the second degree . Following a
jury trial, defendant was convicted as charged. Defendant was
thereafter sentenced to an aggregate prison term of 12 years,
to be followed by five years of postrelease supervision.
Defendant now appeals.
failed to preserve his challenge to the legal sufficiency of
the evidence adduced with regard to assault in the second
degree (count 2) and two counts of burglary in the first
degree (counts 3 and 4) because he only made a general motion
for a trial order of dismissal (see CPL 290.10 ;
470.15  [a]) - he did not specifically challenge whether
defendant inflicted the subject injury by means of a
dangerous instrument (see Penal Law § 10.00
; People v Gragnano, 63 A.D.3d 1437, 1439-1440
, lv denied 13 N.Y.3d 939');">13 N.Y.3d 939 ) or whether
the victim sustained a serious physical injury (see
Penal Law § 120.05 ; People v Heyliger, 126
A.D.3d 1117, 1118 , lv denied 25 N.Y.3d 1165');">25 N.Y.3d 1165
). Nor did defendant preserve for appellate review his
challenge to the legal sufficiency of the evidence with
regard to count 4 and his claim that the People failed to
establish that defendant knew that Layton possessed or
intended to use a knife (see generally People v
Lancaster, 143 A.D.3d 1046, 1047 , lv
denied 28 N.Y.3d 1147');">28 N.Y.3d 1147 ).
similarly failed to preserve for review his contention that
County Court erred when it failed to properly instruct the
jury on the charge of justification for the three burglary
counts (counts 1, 3 and 4). Defendant's counsel only
requested a justification charge with respect to count 2,
charging defendant with assault in the second degree. Nor did
defendant otherwise interpose any objection to the proposed
jury charge during either the charge conference or at any
time after the court had delivered its instructions to the
jury (see People v Soriano, 121 A.D.3d 1419, 1423
; People v Brunson, 68 A.D.3d 1551, 1553
, lv denied 15 N.Y.3d 748');">15 N.Y.3d 748 ).
unpersuasive defendant's contention that he was deprived
of the effective assistance of counsel based upon his
counsel's failure to object to County Court's
justification charge or to request a justification charge
with regard to the three burglary counts. Even assuming,
without deciding, that County Court erred by providing the
jury with a justification charge for both ordinary force and
deadly force with respect to count 2 (see People v
Ramirez, 118 A.D.3d 1108, 1112 ), any such error
was harmless in light of the overwhelming evidence of
defendant's guilt and the fact that there was no
significant probability that the jury would have acquitted
defendant but for such an error (see People v Diaz,
71 A.D.3d 1158, 1158 , lv denied 15 N.Y.3d 804');">15 N.Y.3d 804
; People v Griffith, 254 A.D.2d 753, 754
). Moreover, even if defendant had requested a
justification charge with respect to the three burglary
counts, there was no reasonable view of the evidence that
would support a justification charge or permit the jury to
conclude that defendant's conduct was justified under the
circumstances (see People v Cox, 92 N.Y.2d 1002,
1005 ; People v Taylor, 150 A.D.3d 768, 769
, lv denied 29 N.Y.3d 1134');">29 N.Y.3d 1134 ; People
v Andrews, 78 A.D.3d 1229, 1231 , lv
denied 16 N.Y.3d 827');">16 N.Y.3d 827 ). Defense counsel's
assistance, therefore, cannot be said to be ineffective
inasmuch as he had no obligation to make a motion or render
an objection "that ha[d] little or no chance of
success" (People v Caban, 5 N.Y.3d 143, 152
 [internal quotation marks and citation omitted];
see People v Smith, 157 A.D.3d 978, 981 ).
Having reviewed the record of the underlying proceedings, we
find that defendant otherwise received meaningful
representation (see People v Stultz, 2 N.Y.3d 277,
283 ; People v Criss, 151 A.D.3d 1275,
1280-1281 , lv denied 30 N.Y.3d 979');">30 N.Y.3d 979 ).
Defendant's remaining contentions, to the extent not
specifically addressed, have been reviewed and found to be
Devine, Mulvey, Aarons and Rumsey, JJ., concur.
that the ...