Opinion
2013-02-8
The PEOPLE of the State of New York, Respondent, v. Jerry JOSLYN, Sr., Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Jason L. Cook, District Attorney, Penn Yan (Patrick T. Chamberlain of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant.Jason L. Cook, District Attorney, Penn Yan (Patrick T. Chamberlain of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of grand larceny in the fourth degree (Penal Law § 155.30[7] ), for trading a rifle that had been placed in his possession for safe keeping, and falsely reporting an incident in the third degree (§ 240.50[3][a] ), for falsely reporting a burglary to cover up the larceny. Defendant contends that the evidence is legally insufficient to support his conviction inasmuch as his testimony that he was on pain medication that caused memory loss and confusion demonstrated that he lacked the requisite intent to commit the charged crimes. Defendant failed to preserve that contention for our review ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), and in any event his contention lacks merit. “[V]iewing the evidence in the light most favorable to the prosecution” ( People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that a rational jury could have found that, despite defendant's alleged intoxication, defendant intended to “ ‘deprive [the victim] of [his rifle] or to appropriate the same’ ” ( People v. Jennings, 69 N.Y.2d 103, 118, 512 N.Y.S.2d 652, 504 N.E.2d 1079, quoting § 155.05[1]; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672) and knowingly made a false report ( see generally§ 240.50). Additionally, although a different result would not have been unreasonable ( see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that, viewing the evidence in light of the element of intent as charged to the jury ( see id. at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), the verdict with respect to that element is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Defendant further contends that County Court erred in granting the prosecutor's motion in limine seeking to preclude defense counsel from impeaching the People's witnesses upon cross-examination with certain prior arrests and traffic infractions. Defense counsel, however, waived that contention when he confirmed that he had no objection to the court's ruling ( see generally People v. Graham, 292 A.D.2d 824, 824, 739 N.Y.S.2d 307,lv. denied 98 N.Y.2d 697, 747 N.Y.S.2d 415, 776 N.E.2d 4). With respect to defendant's contention that the prosecutor's cross-examination of him exceeded the scope of direct examination, we note that, “in a criminal case, a party may prove through cross-examination any relevant proposition, regardless of the scope of direct examination” ( People v. Sanders, 2 A.D.3d 1420, 1420–1421, 768 N.Y.S.2d 900 [internal quotation marks omitted] ).
Finally, we reject defendant's contention that he was denied effective assistance of counsel. Although defendant contends that defense counsel was ineffective because he did not oppose the prosecutor's in limine motion, “ ‘[a] defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success' ” ( People v. Harris, 97 A.D.3d 1111, 1111–1112, 948 N.Y.S.2d 512,lv. denied19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883,rearg. denied3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671). Additionally, “ ‘it is incumbenton defendant to demonstrate the absence of strategic or other legitimate explanations' for [defense] counsel's alleged shortcomings” ( People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584, quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698), and here defendant failed to meet that burden ( see People v. Rogers, 70 A.D.3d 1340, 1340, 894 N.Y.S.2d 313,lv. denied14 N.Y.3d 892, 903 N.Y.S.2d 780, 929 N.E.2d 1015,cert. denied––– U.S. ––––, 131 S.Ct. 475, 178 L.Ed.2d 302). Instead, “the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of representation, reveal that [defense counsel] provided meaningful representation” ( People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.