Supreme Court, Appellate Division, Third Department, New York.
The PEOPLE of the State of New York, Respondent, v. Christopher HENDERSON, Appellant.
Decided: November 01, 2007
Before: CREW III, J.P., MUGGLIN, ROSE, LAHTINEN and KANE, JJ.
Daniel M. Gaudreau, Plattsburgh, for appellant. Mary Anne Bukolt–Ryder, Plattsburgh, for respondent.
Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered October 25, 2004, upon a verdict convicting defendant of the crimes of assault in the second degree and criminal possession of a weapon in the third degree.
Defendant, who is married to the victim's ex-wife, approached the victim and struck him several times with a cane, injuring the victim. A jury did not accept defendant's justification defense, instead finding him guilty of assault in the second degree and criminal possession of a weapon in the third degree. Defendant appeals.
Defendant was not deprived of a fair trial. His contention that the People may not have disclosed Brady and Rosario material is not supported by the record, which does not reveal the existence of such material (see Matter of James A., 298 A.D.2d 240, 240, 748 N.Y.S.2d 256  ).
Defense counsel was not ineffective when he agreed that defendant's prior conviction and its underlying facts were admissible. It appears that counsel made a strategic choice to admit these facts on defendant's direct testimony—lessening the impact of the conviction, and highlighting the nonviolent aspect and minimal involvement by defendant—and counsel's legitimate choice should not be second-guessed (see People v. Turner, 37 A.D.3d 874, 876, 829 N.Y.S.2d 261 , lv. denied 8 N.Y.3d 991, 838 N.Y.S.2d 495, 869 N.E.2d 671  ). In any event, the prior conviction of welfare fraud was admissible on cross-examination of defendant as it was relevant to defendant's credibility (see People v. Mangan, 258 A.D.2d 819, 821, 686 N.Y.S.2d 506 , lv. denied 93 N.Y.2d 927, 693 N.Y.S.2d 510, 715 N.E.2d 513  ).
Counsel's choice to not challenge two jurors was not ineffective assistance, but a tactical decision which we will not invade. The court must inquire further if a juror's statements cast serious doubt on the ability to remain fair and impartial (see People v. Bludson, 97 N.Y.2d 644, 645–646, 736 N.Y.S.2d 289, 761 N.E.2d 1016 ; People v. Faulkner, 36 A.D.3d 1071, 1073, 826 N.Y.S.2d 850  ). Here, in contrast to a juror's earlier statement that he might place more confidence in testimony from a police officer because the juror worked as a U.S. Border Patrol agent, during defense counsel's voir dire that juror stated, “I'd like to think I'd be totally a hundred percent impartial” (see People v. Turner, 37 A.D.3d at 876, 829 N.Y.S.2d 261). Based on this statement clarifying his views and his ability to adhere to the law, no further court inquiry was required. That juror was also divorced, which may have played a role in counsel's selection of him considering the relationship of the victim to defendant. No indication of bias toward the prosecution was revealed by another juror merely because a police officer witness was a friend of the juror's sister in college, especially considering that the police officer who testified did not observe the assault. As counsel appeared to have strategic reasons for declining to challenge these two jurors and for permitting questions regarding defendant's prior conviction, defendant received the effective assistance of counsel (seePeople v. Ryan, 90 N.Y.2d 822, 823–824, 660 N.Y.S.2d 376, 682 N.E.2d 977 ; People v. Turner, 37 A.D.3d at 876, 829 N.Y.S.2d 261).
ORDERED that the judgment is affirmed.
CREW III, J.P., MUGGLIN, ROSE and LAHTINEN, JJ., concur.
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