People v. Gilliam

• Decision Date: 05 December 2002
• Citation: 752 N.Y.S.2d 722,300 A.D.2d 701
• Court: New York Supreme Court — Appellate Division
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>DANIEL L. GILLIAM, Appellant.

300 A.D.2d 701

752 N.Y.S.2d 722

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.DANIEL L. GILLIAM, Appellant.

Mugglin, J.

Decided December 5, 2002.

Crew III, J.P., Carpinello, Rose and Kane, JJ., concur.

Mugglin, J.

Defendant inflicted multiple stab wounds on a long-time acquaintance, resulting in the latter's death. He then took $50 in cash which belonged to the victim. As a result, he was indicted on two counts of murder in the second degree and one count of robbery in the first degree. Defendant was convicted of one count each of manslaughter in the first degree and robbery in the first degree and sentenced to concurrent indeterminate prison terms of 8 1/3 to 25 years. Defendant appeals, claiming ineffective assistance of counsel, legally insufficient evidence to disprove his defense of self-defense, error in County Court's refusal to charge the lesser included offense of petit larceny, and that the sentence imposed is harsh and excessive.

Defendant has received the effective assistance of counsel when "the evidence, the law and the circumstances of the case, viewed in their totality and as of the time of representation, reveal that the defendant received meaningful representation" (People v Wright, 297 AD2d 875, 875; see People v Benevento, 91 NY2d 708, 712; People v Baldi, 54 NY2d 137, 147). Meaningful representation does not equate to perfect representation (see People v Driscoll, 251 AD2d 759, 761, lvs denied 92 NY2d 896, 949) and, as a consequence, posttrial disagreement with strategies or tactics adopted by counsel will not suffice to establish the requisite deprivation (see People v Benn, 68 NY2d 941, 942). Here, defendant's attorney made the appropriate pretrial motions, competently performed at trial as demonstrated by his adequate opening and closing arguments to the jury, presented logical defenses to the various counts of the indictment, made numerous effective objections and extensively cross-examined the People's witnesses. Tellingly, his efforts convinced the jury that defendant was not guilty of murder in the second degree. On this record, we do not find that counsel was ineffective.

We next address defendant's contention that County Court committed error by refusing to charge petit larceny as a lesser included offense of robbery in the first degree. To be entitled to a charge of a lesser included offense, defendant must establish two elements: first, that it is impossible to commit the greater offense without concomitantly committing the lesser offense (see CPL 1.20 [37]; People v Mitchell, 288 AD2d 622, 624, lvs denied 97 NY2d 758, 98 NY2d 699) and, second, that "there is a reasonable view of the evidence which would support the finding that the defendant committed the lesser offense but not the greater" (People v Wheeler, 109 AD2d 169, 170, affd 67 NY2d 960). Here, the People concede that the first element is satisfied, i.e., that it is theoretically impossible to commit the crime of robbery in the first degree without also committing the lesser offense of petit larceny (see People v Atkins, 91 AD2d 507). With respect to the second element, we agree with County Court that no reasonable view of the evidence would logically support a finding that defendant committed the offense of petit larceny, but not the greater offense of robbery in the first degree. Defendant's assertion hinges on his claim that a reasonable view of the evidence reveals that the death occurred while he was acting in self-defense and that the admitted larceny therefore did not occur in furtherance of a robbery. Therefore, defendant's claim prevails only if the trial evidence was legally insufficient to disprove his claim of self-defense.

On this issue, we view the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621), and give the benefit of every reasonable inference flowing from the evidence to the People to see if they have submitted legally sufficient evidence to disprove defendant's claim of self-defense beyond a reasonable doubt. In criminal matters, evidence is said to be...