People v. Blair

• Decision Date: 03 October 2014
• Docket Number: 979 KA 12-01370.
• Citation: 994 N.Y.S.2d 215,2014 N.Y. Slip Op. 06730,121 A.D.3d 1570
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. James BLAIR, Defendant–Appellant.

121 A.D.3d 1570
994 N.Y.S.2d 215
2014 N.Y. Slip Op. 06730

The PEOPLE of the State of New York, Respondent
v.
James BLAIR, Defendant–Appellant.

979 KA 12-01370.

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

Oct. 3, 2014.

994 N.Y.S.2d 216

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, and VALENTINO, JJ.

Opinion

MEMORANDUM:

121 A.D.3d 1570

Defendant appeals from a judgment convicting him upon a jury verdict of two counts of attempted murder in the first degree (Penal Law §§ 110.00, 125.27[1][a][v], [vii] ) and one count each of burglary in the first degree (§ 140.30[3] ) and burglary in the second degree (§ 140.25[2] ). The conviction arises out of defendant's participation, along with a codefendant, in two burglaries at the same residence, and the infliction of life-threatening injuries upon the burglary victim during the second burglary. The evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), is legally sufficient to support the conviction. In addition, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

We reject defendant's contention that he was denied effective assistance of counsel based upon defense counsel's failure to object to testimony concerning hearsay statements of the nontestifying codefendant that implicated defendant in the attempted murder and second burglary. Under the circumstances of this case, the decision not to object to that testimony was consistent with a legitimate trial strategy (see People v. Benevento,

121 A.D.3d 1571

91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; cf. People v. Jeannot, 59 A.D.3d 737, 737, 875 N.Y.S.2d 114, lv. denied 12 N.Y.3d 916, 884 N.Y.S.2d 697, 912 N.E.2d 1078 ). We reject defendant's further contention that he was denied effective assistance of counsel based upon defense counsel's failure to object to the prosecutor's alleged misconduct during summation. Even assuming, arguendo, that some of the prosecutor's comments were improper, we conclude that his conduct was not so egregious that it deprived defendant of a fair trial (see People v. Benton, 106 A.D.3d 1451, 1452, 964 N.Y.S.2d 386, lv. denied 21 N.Y.3d 1040, 972 N.Y.S.2d 537, 995 N.E.2d 853 ), and thus the ...