PEOPLE v. WINDLEY

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

The PEOPLE, etc., respondent, v. Kenneth WINDLEY, appellant.

Decided: February 23, 2010

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and LEONARD B. AUSTIN, JJ. S. Kenneth F. Jones, Brooklyn, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anne C. Feigus, and Jill Oziemblewski of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Heffernan, J.), rendered March 21, 2007, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, reversal of the judgment of conviction is not warranted by the Supreme Court's alleged error in issuing certain jury instructions in response to defense counsel's summation, since the evidence of the defendant's guilt, without reference to the alleged error, was overwhelming, and there is no reasonable possibility that the alleged error might have contributed to the defendant's conviction.   Thus, any error was harmless beyond a reasonable doubt (see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Rush, 44 A.D.3d 799, 800, 843 N.Y.S.2d 392;  People v. Duggins, 1 A.D.3d 450, 451, 766 N.Y.S.2d 702, affd. 3 N.Y.3d 522, 788 N.Y.S.2d 638, 821 N.E.2d 942).

 New York applies a “flexible standard” to evaluating claims of ineffective assistance of counsel (People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584) so that where “the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation,” counsel's performance will not be found ineffective (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).  “Isolated errors in counsel's representation generally will not rise to the level of ineffectiveness, unless the error is so serious that defendant did not receive a fair trial” (People v. Henry, 95 N.Y.2d 563, 565-566, 721 N.Y.S.2d 577, 744 N.E.2d 112 [internal quotation marks omitted];  see People v. Flores, 84 N.Y.2d 184, 188-189, 615 N.Y.S.2d 662, 639 N.E.2d 19, revd. 215 F.3d 293, cert. denied sub nom. Keane v. Flores, 531 U.S. 1029, 121 S.Ct. 606, 148 L.Ed.2d 517).   Moreover, a defendant raising an ineffectiveness of counsel claim must “ ‘demonstrate the absence of strategic or other legitimate explanations for counsel's [supposed] failure[s]’ ” (People v. Taylor, 1 N.Y.3d 174, 177, 770 N.Y.S.2d 711, 802 N.E.2d 1109, quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).

 Here, although the defendant identifies isolated flaws in trial counsel's performance, he has identified no defects so serious as to demonstrate that he did not receive a fair trial (see generally People v. Hines, 46 A.D.3d 912, 913, 848 N.Y.S.2d 349;  People v. Reilly, 128 A.D.2d 649, 650, 512 N.Y.S.2d 892;  People v. McMillan, 111 A.D.2d 934, 935, 490 N.Y.S.2d 616).   Likewise, a defendant cannot establish ineffectiveness merely by showing that his attorney employed “questionable or debatable trial strategies” (People v. Sullivan, 153 A.D.2d 223, 227, 550 N.Y.S.2d 358) and, in any event, the defendant has failed to demonstrate that counsel did not have legitimate tactical reasons for the tactics he employed (see People v. Baldi, 54 N.Y.2d at 151, 444 N.Y.S.2d 893, 429 N.E.2d 400;  Pareja v. City of New York, 49 A.D.3d 470, 854 N.Y.S.2d 380;  People v. Gonzalez, 22 A.D.3d 597, 598, 801 N.Y.S.2d 757;  People v. Sullivan, 153 A.D.2d at 228, 550 N.Y.S.2d 358).   Moreover, when considered as a whole, trial counsel's performance was effective (see People v. Gonzalez, 22 A.D.3d at 598, 801 N.Y.S.2d 757).

The defendant's remaining contention is unpreserved for appellate review (see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61;  People v. Hickman, 60 A.D.3d 865, 866, 875 N.Y.S.2d 530;  CPL 470.05[2] ) and, in any event, is without merit (see People v. Wise, 46 N.Y.2d 321, 326, 413 N.Y.S.2d 334, 385 N.E.2d 1262;  People v. Fiedorczyk, 159 A.D.2d 585, 586, 552 N.Y.S.2d 443;  see generally People v. Lane, 7 N.Y.3d at 889-890, 826 N.Y.S.2d 599, 860 N.E.2d 61;  People v. Aska, 91 N.Y.2d 979, 981, 674 N.Y.S.2d 271, 697 N.E.2d 172).

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