PEOPLE v. TORRES

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

The PEOPLE of the State of New York, Respondent, v. Jose TORRES, Appellant.

Decided: February 25, 1999

Before:  MERCURE, J.P., CREW III, PETERS, SPAIN and CARPINELLO, JJ. Richard V. Manning, Parishville, for appellant. Jerome J. Richards, District Attorney (Rosemary R. Philips of counsel), Canton, for respondent.

Appeals (1) from a judgment of the County Court of St. Lawrence County (Nicandri, J.), rendered February 9, 1998, upon a verdict convicting defendant of the crimes of assault in the first degree, assault in the second degree and criminal possession of a weapon in the third degree, and (2) from a judgment of said court, rendered March 23, 1998, which resentenced defendant.

On July 3, 1995 at Gouverneur Correctional Facility in St. Lawrence County, a number of Hispanic inmates severely beat an African-American inmate, leaving him unconscious.   Defendant and Luis Alvarado were later identified by a correction officer to be among the inmates involved.   The correction officer contended that he saw defendant hit the victim from behind with a weight bar.   Both defendant and Alvarado were charged with assault in the first degree, assault in the second degree and criminal possession of a weapon in the third degree.   After a joint trial, defendant was found guilty of all counts.   Upon the discovery that defendant received an illegal sentence on February 9, 1998, he was resentenced on March 23, 1998 as a second felony offender to three concurrent 31/212 to 7-year terms of imprisonment.

Upon appeal, defendant contends that the trial evidence was legally insufficient, that the jury verdict was against the weight of the credible evidence and that he was denied effective assistance of counsel.   Additionally, he asserts that he was denied a fair trial because County Court admitted a weight bar into evidence notwithstanding the fact that such bar was not involved in the assault and erred in its charge to the jury.

 Viewing the trial evidence, as we must, in a light most favorable to the People (see, People v. Rossey, 89 N.Y.2d 970, 655 N.Y.S.2d 861, 678 N.E.2d 473;  People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that legally sufficient evidence was presented to establish defendant's guilt.   As to the weight of the evidence, viewed in a neutral light (see, People v. Carthrens, 171 A.D.2d 387, 577 N.Y.S.2d 249), we are similarly satisfied that the jury did not fail to “give [it] the weight it should be accorded” (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Addressing defendant's claim of ineffective assistance of counsel, we find, upon our consideration of the totality of the circumstances here presented, that counsel provided meaningful representation.   He conducted adequate examination of witnesses, made appropriate objections, and presented sufficient opening and closing statements.   In fact, statements made during summation complementing the correction officer's proper implementation of his duties yet suggesting an inadvertent misidentification of defendant exemplified appropriate trial strategy.  “It is always easy with the advantage of hindsight to point out where trial counsel went awry in strategy.   But trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness” (People v. Baldi, 54 N.Y.2d 137, 146, 444 N.Y.S.2d 893, 429 N.E.2d 400).

 Moreover, we find no error in the admission of the 10-pound weight bar as demonstrative evidence since the People clarified, and County Court confirmed, that it was offered only as a model so that the jury would have a more accurate idea of the true character of the object (see, People v. Del Vermo, 192 N.Y. 470, 482, 85 N.E. 690).   As its introduction did not deprive defendant of a fair trial (People v. Langley, 232 A.D.2d 427, 649 N.Y.S.2d 21, lv. denied 89 N.Y.2d 865, 653 N.Y.S.2d 288, 675 N.E.2d 1241), we next address the court's charge.   The record reflects that County Court held a precharge conference during which defense counsel neither offered requests nor made exceptions.   Counsel similarly failed to ask for additional charges or the issuance of a curative instruction after the jury was charged.   Having failed to preserve any issue with respect to the charge (see, People v. Robinson, 88 N.Y.2d 1001, 648 N.Y.S.2d 869, 671 N.E.2d 1266;  People v. Robinson, 36 N.Y.2d 224, 367 N.Y.S.2d 208, 326 N.E.2d 784), we dismiss current contentions of error.

ORDERED that the judgments are affirmed.

PETERS, J.

MERCURE, J.P., CREW III, SPAIN and CARPINELLO, JJ., concur.

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