PEOPLE v. DOUGLAS (2009)

Defendant appeals from a judgment convicting him after a jury trial of attempted murder in the second degree (Penal Law §§ 110.00, 125. 25[1] ) and assault in the first degree (§ 120.10[1] ).   Defendant failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct on summation (see People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356, lv. denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800) and, in any event, that contention is without merit.   The majority of the prosecutor's comments on summation to which defendant objects on appeal were within the “ ‘broad bounds of rhetorical comment permissible in closing argument’ ” (People v. Williams, 28 A.D.3d 1059, 1061, 813 N.Y.S.2d 606, affd. 8 N.Y.3d 854, 831 N.Y.S.2d 367, 863 N.E.2d 588, quoting People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885), and those comments that were arguably beyond those bounds were not so egregious as to deprive defendant of a fair trial (see People v. Rivera, 281 A.D.2d 927, 928, 723 N.Y.S.2d 775, lv. denied 96 N.Y.2d 906, 730 N.Y.S.2d 804, 756 N.E.2d 92;  People v. Walker, 234 A.D.2d 962, 963, 652 N.Y.S.2d 441, lv. denied 89 N.Y.2d 1042, 659 N.Y.S.2d 873, 681 N.E.2d 1320).   We further conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   The alleged instances of ineffective assistance concerning defense counsel's failure to make various objections “are based largely on his hindsight disagreements with defense counsel's trial strategies, and defendant failed to meet his burden of establishing the absence of any legitimate explanations for those strategies” (People v. Morrison, 48 A.D.3d 1044, 1045, 852 N.Y.S.2d 495, lv. denied 10 N.Y.3d 867, 860 N.Y.S.2d 494, 890 N.E.2d 257;  see People v. Benevento, 91 N.Y.2d 708, 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584).   Further, “[t]here can be no denial of effective assistance of ․ counsel arising from [defense] counsel's failure to ‘make a motion or argument that has little or no chance of success' ” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883, rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671;  see People v. Odom, 53 A.D.3d 1084, 1087, 861 N.Y.S.2d 892, lv. denied 11 N.Y.3d 792, 866 N.Y.S.2d 618, 896 N.E.2d 104).   Finally, although we agree with defendant that County Court erred in admitting a newspaper article concerning the number of local homicides, we conclude that the error is harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: