PEOPLE v. WOLZ

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

The PEOPLE, etc., Respondent, v. Griffith WOLZ, Appellant.

Decided: December 23, 2002

DAVID S. RITTER, J.P., WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO and HOWARD MILLER, JJ. Julia Pamela Heit, New York, NY, for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel;  Sam Schneider on the brief), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Braslow, J.), rendered August 31, 2001, convicting him of manslaughter in the second degree, assault in the second degree, reckless endangerment in the first degree, speeding, failing to stay in lane, driving on the shoulder, and drinking an alcoholic beverage in a motor vehicle, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932;  see also People v. Taylor, 94 N.Y.2d 910, 911-912, 707 N.Y.S.2d 618, 729 N.E.2d 337), we find that it was legally sufficient to establish the defendant's guilt of manslaughter in the second degree (see People v. Boutin, 75 N.Y.2d 692, 556 N.Y.S.2d 1, 555 N.E.2d 253;  People v. Heinsohn, 61 N.Y.2d 855, 473 N.Y.S.2d 968, 462 N.E.2d 145;  People v. Miller, 286 A.D.2d 981, 730 N.Y.S.2d 617;  People v. Williams, 253 A.D.2d 445, 677 N.Y.S.2d 366;  People v. Jones, 198 A.D.2d 436, 604 N.Y.S.2d 145;  People v. Poliakov, 167 A.D.2d 115, 116, 561 N.Y.S.2d 435), assault in the second degree (see People v. Coleman, 195 A.D.2d 475, 600 N.Y.S.2d 115), and reckless endangerment in the first degree (see People v. Gomez, 65 N.Y.2d 9, 489 N.Y.S.2d 156, 478 N.E.2d 759;  People v. Walker, 258 A.D.2d 541, 685 N.Y.S.2d 452;  People v. Cordero, 177 A.D.2d 499, 576 N.Y.S.2d 34;  People v. Ruiz, 159 A.D.2d 656, 553 N.Y.S.2d 173) beyond a reasonable doubt.   The defendant was driving at an excessive rate of speed, weaving in and around other vehicles, and drove onto the shoulder of the road before losing control of his car and crossing the median into the opposing lane of traffic where his vehicle spun around and stopped, causing the death of one motorcyclist and serious injuries to another.

Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5] ).

 Defense counsel's tactical maneuvers do not, by themselves, establish a claim of ineffective assistance of counsel (see People v. Benn, 68 N.Y.2d 941, 942, 510 N.Y.S.2d 81, 502 N.E.2d 996;  People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. James, 203 A.D.2d 384, 385, 612 N.Y.S.2d 910;  People v. Hinds, 183 A.D.2d 848, 586 N.Y.S.2d 525).   Counsel's failure to request that the court instruct the jury as to a lesser-included offense should not be considered ineffective assistance (see People v. Gavin, 224 A.D.2d 223, 638 N.Y.S.2d 295;  People v. Drummond, 188 A.D.2d 312, 591 N.Y.S.2d 9;  People v. Vargas, 150 A.D.2d 513, 541 N.Y.S.2d 107).   Viewing counsel's representation as a whole, it satisfied the standard of effective assistance (see People v. Mejias, 278 A.D.2d 249, 717 N.Y.S.2d 269;  People v. Grieco, 262 A.D.2d 656, 691 N.Y.S.2d 888;  People v. Groonell, 256 A.D.2d 356, 357, 682 N.Y.S.2d 226;  People v. McGuire, 205 A.D.2d 805, 614 N.Y.S.2d 921).

The defendant's remaining contentions are without merit.

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