People v. Fountain

• Decision Date: 23 January 2013
• Citation: 2013 N.Y. Slip Op. 00354,958 N.Y.S.2d 470,102 A.D.3d 887
• Parties: The PEOPLE, etc., respondent, v. Albert FOUNTAIN, appellant.
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 887

958 N.Y.S.2d 470

2013 N.Y. Slip Op. 00354

The PEOPLE, etc., respondent,

v.Albert FOUNTAIN, appellant.

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

Jan. 23, 2013.

Larry Sheehan, Bronx, N.Y., for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Roni C. Piplani of counsel), for respondent.

RUTH C. BALKIN, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGann, J.), rendered October 14, 2010, convicting him of predatory sexual assault (four counts), burglary in the first degree (two counts), robbery in the first degree (two counts), and unlawful imprisonment in the first degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contentions regarding the People's use of oral, written, and videotaped statements to impeach their own witness pursuant to CPL 60.35 are unpreserved for appellate review ( seeCPL 470.05[2]; People v. Clark, 37 A.D.3d 487, 488, 829 N.Y.S.2d 201;People v. Jones, 25 A.D.3d 724, 725, 811 N.Y.S.2d 702). In any event, the trial court did not improvidently exercise its discretion in permitting the People to impeach the witness with the minutes of his sworn plea allocution ( seeCPL 60.35[1]; People v. Thomas, 64 A.D.3d 798, 798–799, 882 N.Y.S.2d 693;People v. Jones, 25 A.D.3d at 725, 811 N.Y.S.2d 702;People v. De Jesus, 101 A.D.2d 111, 112–115, 475 N.Y.S.2d 19,affd.64 N.Y.2d 1126, 490 N.Y.S.2d 188, 479 N.E.2d 824). Moreover, any error with respect to the People's impeachment of that witness other than with the witness's sworn plea allocution was harmless in light of the overwhelming evidence of the defendant's guilt and the absence of any significant probability that the verdict would have been different without the error ( see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787;People v. Thomas, 64 A.D.3d at 799, 882 N.Y.S.2d 693;People v. Spurgeon, 63 A.D.3d 863, 864, 880 N.Y.S.2d 707).

The New York Constitution “ ‘guarantees the accused a fair trial, not necessarily a perfect one’ ” ( People v. Turner, 5 N.Y.3d 476, 480, 806 N.Y.S.2d 154, 840 N.E.2d 123, quoting People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584). Since the record demonstrated that, viewed in its totality, counsel's performance on behalf of the defendant constituted meaningful representation, the defendant was not deprived of the effective assistance of counsel under the New York Constitution ( see People v. Turner, 5 N.Y.3d at 480, 806 N.Y.S.2d 154, 840 N.E.2d 123;People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). Furthermore, because the record also establishes that counsel's representation did not fall “ ‘below an objective standard of reasonableness' ” or that “ ‘there is a reasonable possibility that, but for counsel's [claimed] unprofessional errors, the result of the proceeding would have been different,’ ” the defendant was not deprived of the...