PEOPLE v. LEWIS

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

The PEOPLE of the State of New York, Respondent, v. Jamell LEWIS, Defendant-Appellant.

Decided: November 13, 2009

PRESENT:  MARTOCHE, J.P., SMITH, PERADOTTO, GREEN, AND PINE, JJ. Timothy P. Donaher, Public Defender, Rochester (Matthew J. Clark of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of Counsel), for Respondent.

 The sole contention of defendant in this appeal from a judgment convicting him following a nonjury trial of murder in the second degree (Penal Law § 125.25[1] ) is that he was denied effective assistance of counsel.   We reject that contention (see generally People v. Flores, 84 N.Y.2d 184, 186-187, 615 N.Y.S.2d 662, 639 N.E.2d 19;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Defense counsel's failure to make various motions that had little or no chance of success does not constitute ineffective assistance of counsel (see People v. McDuffie, 46 A.D.3d 1385, 1386, 847 N.Y.S.2d 808, lv. denied 10 N.Y.3d 867, 860 N.Y.S.2d 493, 890 N.E.2d 256;  People v. Dashnaw, 37 A.D.3d 860, 863, 828 N.Y.S.2d 697, lv. denied 8 N.Y.3d 945, 836 N.Y.S.2d 555, 868 N.E.2d 238;  People v. Johnson, 11 A.D.3d 979, 979-980, 782 N.Y.S.2d 235, lv. denied 3 N.Y.3d 757, 788 N.Y.S.2d 674, 821 N.E.2d 979).   In addition, defense counsel's failure to object to County Court's Sandoval ruling or to seek a compromise ruling did not constitute ineffective assistance of counsel inasmuch as the court in this nonjury trial “ ‘is presumed to have evaluated the evidence [of defendant's past criminal conduct] only for the purpose of impeaching ․ defendant's credibility and not as evidence of guilt of the crime charged’ ” (People v. Maryon, 20 A.D.3d 911, 912-913, 797 N.Y.S.2d 684, lv. denied 5 N.Y.3d 854, 806 N.Y.S.2d 174, 840 N.E.2d 143).

 Contrary to defendant's further contention, neither defense counsel's failure to object to the prosecutor's allegedly improper remarks during summation nor defense counsel's limited cross-examination of certain witnesses deprived defendant of effective assistance of counsel, particularly in the context of this nonjury trial (see Maryon, 20 A.D.3d at 913, 797 N.Y.S.2d 684;  see also People v. Walker, 50 A.D.3d 1452, 1453, 856 N.Y.S.2d 775, lv. denied 11 N.Y.3d 795, 866 N.Y.S.2d 622, 896 N.E.2d 108, 11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450).

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

MEMORANDUM: