PEOPLE v. COPELAND III

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Johnny COPELAND, III, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., HURLBUTT, LUNN, FAHEY, AND PINE, JJ. Edward J. Nowak, Public Defender, Rochester (William Clauss of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Leslie E. Swift of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of one count of assault in the second degree (Penal Law § 120.05[2] ), and two counts each of criminal possession of a weapon in the second degree (former § 265.03[2] ) and criminal possession of a weapon in the third degree (§ 265.02[1], [4] ).   Defendant contends that he was denied effective assistance of counsel based on defense counsel's failure to request limiting instructions concerning evidence of defendant's parole status and defense counsel's failure to object to the prosecutor's improper remarks concerning his parole status on summation.   We reject that contention (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   The constitutional right to effective assistance of counsel “does not guarantee a perfect trial, but assures the defendant a fair trial” (People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19).   Here, defendant failed to meet his burden of demonstrating “the absence of strategic or other legitimate explanations for [defense] counsel's [alleged] failure[s]” (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).   The evidence of defendant's parole status was necessary in order to “complete the narrative of the crime[s] charged” (People v. Tabora, 139 A.D.2d 540, 541, 527 N.Y.S.2d 36, lv. denied 72 N.Y.2d 925, 532 N.Y.S.2d 859, 529 N.E.2d 189), and the prosecutor thus was entitled to refer to that evidence on summation (cf. People v. Casey, 37 A.D.3d 1113, 1116-1117, 829 N.Y.S.2d 309, lv. denied 8 N.Y.3d 983, 838 N.Y.S.2d 486, 869 N.E.2d 662).   Defendant failed to preserve for our review his further contention that the evidence of his constructive possession of a weapon on November 14, 2003 is legally insufficient to support the conviction of criminal possession of a weapon in the second degree under count three of the indictment and criminal possession of a weapon in the third degree under counts four and five (see People v. Boodrow, 30 A.D.3d 758, 759, 816 N.Y.S.2d 621, lv. denied 7 N.Y.3d 900, 826 N.Y.S.2d 609, 860 N.E.2d 71;  see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Kleinhans, 236 A.D.2d 790, 653 N.Y.S.2d 877, lv. denied 89 N.Y.2d 1096, 660 N.Y.S.2d 390, 682 N.E.2d 991).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: