PEOPLE v. BABB (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.), rendered July 24, 2006, convicting her of assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that she was deprived of the effective assistance of counsel because her attorney failed to object to the court's “flight” charge, failed to request a “justification” charge, and failed to object to expert testimony that certain of the victim's wounds were “defensive.”   We disagree.

 It is not error for defense counsel to fail to make futile motions or objections (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;  People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883).   Here, the court's instructions to the jury regarding flight as evidence of consciousness of guilt were appropriate, as the evidence had “a tendency to establish the fact sought to be proved-that defendant was aware of guilt” (People v. Bennett, 79 N.Y.2d 464, 470, 583 N.Y.S.2d 825, 593 N.E.2d 279).   Furthermore, the jury was instructed about the limited probative value of the evidence (see People v. Baker, 26 N.Y.2d 169, 174, 309 N.Y.S.2d 174, 257 N.E.2d 630).

 Similarly, viewing the evidence in a light most favorable to the defendant, there was no reasonable view of the evidence to support the elements of a justification defense (see People v. Collins, 290 A.D.2d 457, 458, 736 N.Y.S.2d 109).   The defendant was virtually unscathed by the fight in question and sought no medical treatment for her injuries, while her victim received over 100 stitches and psychotherapy to deal with the scars on her face and body.   Furthermore, the defendant did not rely on the defense of justification at trial.   Instead, she argued that she did not have a blade and did not cut the victim, thus providing a strategic explanation for counsel's decision not to raise that defense (see People v. Dean, 50 A.D.3d 1052, 1055, 856 N.Y.S.2d 649).

Although defense counsel erred in failing to object to the testimony of the People's expert that some of the expert victim's wounds were defensive (see People v. Paschall, 91 A.D.2d 645, 456 N.Y.S.2d 828;  see also People v. Hicks, 2 N.Y.3d 750, 751, 778 N.Y.S.2d 745, 811 N.E.2d 7;  cf. People v. Collins, 290 A.D.2d 457, 458, 736 N.Y.S.2d 109), viewing the totality of the evidence, the law, and the circumstances of the case, we conclude that the defendant received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Bryson, 66 A.D.3d 916, 887 N.Y.S.2d 263).