THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JERMAINE HARRISON DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of assault in the first degree (Penal Law § 120.10 [1]), arising from an incident in which the victim sustained multiple stab wounds during a fight with defendant outside of a bar. We affirm.

Defendant contends that County Court committed reversible error by refusing to admit in evidence a written prior inconsistent statement of a prosecution witness, i.e., the victim's girlfriend who was present during the incident. We reject that contention inasmuch as “[t]he substance of that prior statement was admitted in evidence through defense counsel's cross-examination of that witness” (People v Lewis, 277 AD2d 1022, 1022 [4th Dept 2000], lv denied 96 NY2d 802 [2001]; see People v May, 125 AD3d 1465, 1466 [4th Dept 2015], lv denied 25 NY3d 1204 [2015]; People v Peppard, 27 AD3d 1143, 1144 [4th Dept 2006], lv denied 7 NY3d 793 [2006]; see generally People v Piazza, 48 NY2d 151, 164-165 [1979]).

Defendant next contends that he was denied effective assistance of counsel based on defense counsel's failure to request a missing witness charge with respect to the victim's cousin, who was also present at the scene of the incident. We reject that contention inasmuch as there was no indication in the record that the cousin would have provided noncumulative testimony favorable to the People (see People v Mainella, 236 AD3d 1355, 1356 [4th Dept 2025], lv denied 43 NY3d 1057 [2025]; People v Smith, 118 AD3d 1492, 1493 [4th Dept 2014], lv denied 25 NY3d 953 [2015]; see generally People v Smith, 33 NY3d 454, 458-459 [2019]). We also reject defendant's related contention that defense counsel was ineffective during summation for not raising a missing witness argument even in the absence of a missing witness jury instruction (see generally People v Thomas, 21 NY3d 226, 230-231 [2013]) inasmuch as that claim constitutes a “simple disagreement with strategies and tactics” and thus does not rise to the level of ineffective assistance (People v Rivera, 71 NY2d 705, 709 [1988]; see People v Healy, 182 AD3d 1014, 1015 [4th Dept 2020], lv denied 35 NY3d 1045 [2020]). Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court