PEOPLE v. SHEPARD (2019)

DECISION & ORDER

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, he was provided with effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Georgiou, 38 A.D.3d 155, 828 N.Y.S.2d 541).  Defense counsel was vigorous in his representation of the defendant, seeking to establish that the complainant, who allegedly owed money to the defendant, was not credible and had been motivated to fabricate his testimony against the defendant.  Counsel's decisions to introduce testimony pertaining to benefits received by the complainant from the District Attorney's Office, to refrain from objecting to the admission of certain testimony, and to decline to call attention to a missing witness who could have provided evidence corroborating the complainant's testimony, were consistent with the defense strategy.  “The defendant's disagreement with the strategies and tactics employed by the defense counsel does not amount to a deprivation of effective assistance of counsel” (People v. Palacios, 295 A.D.2d 452, 743 N.Y.S.2d 302;  see People v. Ramkissoon, 36 A.D.3d 834, 835, 829 N.Y.S.2d 157), particularly where, as here, counsel was faced with overwhelming evidence against his client (see People v. McVey, 289 A.D.2d 260, 734 N.Y.S.2d 203).

Furthermore, defense counsel's failure to object to certain summation remarks of the prosecutor, or to the prosecutor's use of PowerPoint slides as visual aids during summation, did not constitute ineffective assistance of counsel.  The majority of the challenged comments and slides were within the broad bounds of rhetorical comment permissible in closing arguments, constituted a fair response to arguments made by defense counsel in summation, or constituted fair comment on the evidence (see People v. Baez, 137 A.D.3d 805, 805–806, 27 N.Y.S.3d 161).  To the extent that some of the comments were improper, the failures to object were not, either individually or collectively, so egregious as to deprive the defendant of a fair trial (see People v. Stevenson, 129 A.D.3d 998, 999, 11 N.Y.S.3d 646).

The defendant's challenge to the Supreme Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) is without merit.  The defendant's past crimes were relevant to the issue of credibility because they demonstrated his willingness to deliberately further his self-interest at the expense of society (see People v. Seymour, 77 A.D.3d 976, 979, 910 N.Y.S.2d 487;  People v. Diaz, 50 A.D.3d 919, 855 N.Y.S.2d 647).  Moreover, the prosecutor was not permitted to inquire about the underlying facts of those prior crimes (see People v. Seymour, 77 A.D.3d at 979, 910 N.Y.S.2d 487).  Under these circumstances, the court struck an appropriate balance between the probative value of the defendant's prior crimes on the issue of his credibility and the possible prejudice to the defendant.  The defendant failed to sustain his burden of “demonstrating that the prejudicial effect of the evidence of his prior convictions so outweighed its probative worth that its exclusion was warranted” (People v. Myron, 28 A.D.3d 681, 683, 814 N.Y.S.2d 198).

DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.