PEOPLE v. BERGER (2004)

DECISION

Application by defendant-appellant for a writ of error coram nobis is denied.

 There is no merit to defendant's claim of ineffective assistance of counsel on the appeal.   Appellate counsel made a successful application in this court for leave to proceed upon an abridged record “[f]or good cause shown ․” (22 NYCRR 731.1[b][2] ).   Defendant's present attorney contends that defendant's appellate counsel did not read the trial transcript and, as a result of his failure to do so, he overlooked and failed to raise the argument that the lower court should have instructed the jury as to the law of justification in defense of property.   Defendant's attorney concedes, however, that defendant's trial counsel (a different attorney from his appellate counsel) did not request this charge or make a timely objection.   It is well established that where trial counsel fails to either request specific instructions with regard to a jury charge or timely object to the court's charge as given, said contention is unpreserved for appellate review (see CPL 470.05[2];  People v. Brunson, 1 A.D.3d 375, 766 N.Y.S.2d 601 [2003], lv. denied 1 N.Y.3d 569, 775 N.Y.S.2d 786, 807 N.E.2d 899 [2003];  People v. Muhammed, 303 A.D.2d 424, 755 N.Y.S.2d 869 [2003], lv. denied 99 N.Y.2d 656, 760 N.Y.S.2d 121, 790 N.E.2d 295 [2003];  People v. Hyc, 240 A.D.2d 431, 658 N.Y.S.2d 1005 [1997], lv. denied 91 N.Y.2d 874, 668 N.Y.S.2d 573, 691 N.E.2d 645 [1997];  People v. Samuels, 198 A.D.2d 384, 603 N.Y.S.2d 344 [1993], lv. denied 82 N.Y.2d 930, 610 N.Y.S.2d 182, 632 N.E.2d 492 [1994] ).   While courts at times exercise their discretion and review such claims in the interest of justice despite the fact that trial counsel failed to request such a charge or to timely object to the court's omission to give such a charge (see People v. Copeland, 216 A.D.2d 55, 627 N.Y.S.2d 653 [1995];  People v. Coleman, 122 A.D.2d 568, 504 N.Y.S.2d 949 [1986];  People v. Flores, 75 A.D.2d 649, 427 N.Y.S.2d 275 [1980] ), this court would not, under the instant circumstances, have been inclined to do so had defendant's appellate counsel raised such argument on appeal.   Parenthetically, the trial court did give a jury instruction on justification relating to self-defense (though not defense of property).

 Appellate counsel competently, though unsuccessfully, advocated defendant's positions with regard to the alleged denial of his statutory right to a speedy trial and the propriety of his being permitted to proceed pro se in the court below (see People v. Berger, 2 Misc.3d 46, 774 N.Y.S.2d 247 [2003] ).   Furthermore, the facts underlying the commission of the subject assault were comparatively simple and did not require production of the trial transcript in order to permit a proper review of the issue of excessiveness of sentence.   In sum, the appellate counsel did satisfy the test of “meaningful representation” (People v. Stultz, 2 N.Y.3d 277, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004] ).