THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. TYRONE PRESCOTT DEFENDANT APPELLANT (2015)

MEMORANDUM AND ORDER

Now, upon remittitur from the Court of Appeals,

It is hereby ORDERED that, upon remittitur from the Court of Appeals, the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon a nonjury verdict of gang assault in the first degree (Penal Law § 120.07) and assault in the first degree (§ 120.10[1] ).   We reject defendant's contention that he received ineffective assistance of counsel.   Defendant has failed to demonstrate “ ‘the absence of strategic or other legitimate explanations' “ for the decisions of defense counsel to permit defendant to waive his right to a jury trial (People v. Caban, 5 NY3d 143, 152;  see People v. Boateng, 246 A.D.2d 749, 749–750, lv denied 91 N.Y.2d 970), and not to allow him to testify (see People v. Collins, 85 AD3d 1678, 1679, lv denied 18 NY3d 993).   Defense counsel was not ineffective in failing to object to Supreme Court's decision to have defendant remain in handcuffs throughout the trial.   The court stated the reasons for its decision (see People v. Best, 19 NY3d 739, 743–744;  People v. Tucker, 261 A.D.2d 877, 878, lv denied 94 N.Y.2d 830), and we conclude that any objection by defense counsel would have had little or no chance of success (see People Gilpatrick, 63 AD3d 1636, 1637, lv denied 13 NY3d 835).   Defense counsel was not ineffective for failing to call an expert witness to testify regarding the lack of blood found on defendant.  “ ‘Defendant has not demonstrated that such testimony was available, that it would have assisted the [court] in its determination or that he was prejudiced by its absence’ “ (People v. Kilbury, 83 AD3d 1579, 1580, lv denied 17 NY3d 860;  see People v. Feeley, 23 AD3d 1130, 1130–1131, lv denied 6 NY3d 775).   Viewing the evidence, the law and the circumstances of this case in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147).   The sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court