People v. Bahr

• Decision Date: 14 June 2012
• Citation: 2012 N.Y. Slip Op. 04793,96 A.D.3d 1165,946 N.Y.S.2d 675
• Parties: The PEOPLE of the State of New York, Respondent, v. Matthew S. BAHR, Appellant.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1165
946 N.Y.S.2d 675
2012 N.Y. Slip Op. 04793

The PEOPLE of the State of New York, Respondent,
v.
Matthew S. BAHR, Appellant.

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

June 14, 2012.

[946 N.Y.S.2d 676]

Jay L. Wilber, Public Defender, Binghamton, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Rita M. Basile of counsel), for respondent.

Before: ROSE, J.P., MALONE JR., STEIN, GARRY and EGAN JR., JJ.

EGAN JR., J.

[96 A.D.3d 1165]Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered February 22, 2011, upon a verdict convicting defendant of the crime of assault in the second degree.

On June 27, 2008, the victim left work at approximately 11:00 P.M. and, upon arriving home and discovering his daughter's slumber party in progress, hopped on his Harley Davidson motorcycle and went for a ride—ultimately arriving at Matty B's, a bar owned by defendant in the City of Binghamton, Broome County. The victim entered, stood at the bar and ordered a bottle of beer from defendant, the only bartender on duty that night. When the victim ordered a second beer and received what he believed to be insufficient change, he questioned defendant regarding the apparent discrepancy. According to the victim, defendant became defensive and abusive, grabbed [96 A.D.3d 1166]the bottle of beer from the victim's hand and struck the victim above his left eye. Briefly stunned, the victim—after observing defendant “barreling around [the] bar” and coming toward him—fled the bar, ran down the street and called 911. The victim thereafter was brought to a local hospital, where he received stitches for the laceration to his forehead.

As a result of this incident, defendant was indicted and charged with one count of assault in the second degree. Following a jury trial, defendant was convicted as charged and was sentenced to five years of probation, together with three months of working weekends at the local jail. Defendant now appeals contending, among other things, that he was denied the effective assistance of counsel.

We affirm. To the extent that defendant contends that trial counsel failed to conduct an adequate pretrial investigation to locate potential witnesses, defendant's allegations in this regard involve matters outside the record and, as such, are more properly the subject of a CPL article 440 motion ( see People v. Bonelli, 41 A.D.3d 972, 973, 837 N.Y.S.2d 434 [2007],lv. denied9 N.Y.3d 921, 844 N.Y.S.2d 176, 875 N.E.2d 895 [2007] ).¹ As to the balance of defendant's claim, we find it to be lacking in merit. “[S]o long as 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” ( People v. Muriel, 75 A.D.3d 908, 911, 905 N.Y.S.2d 363 [2010],lv. denied15 N.Y.3d 922, 913 N.Y.S.2d 649, 939 N.E.2d 815 [2010] [internal quotation marks and citations omitted]; see People v. Young, 86 A.D.3d 796, 799, 927 N.Y.S.2d 221 [2011],lv. denied17 N.Y.3d 905, 933 N.Y.S.2d 660, 957 N.E.2d 1164 [2011] ), the defendant will be deemed to have received the effective assistance of counsel. Here, trial counsel engaged in appropriate pretrial motion practice (as evidenced by the transcript of the combined Sandoval and Huntley hearing), made cogent opening and closing statements, advanced a plausible—albeit ultimately unsuccessful—defense, vigorously

[946 N.Y.S.2d 677]

cross-examined the People's witnesses and made appropriate objections—including a motion for a mistrial ( see People v. Buchanan, 95 A.D.3d 1433, 1436–37, 944 N.Y.S.2d 378 [2012];People...