People v. Hernandez

• Decision Date: 19 March 2021
• Docket Number: 886,KA 17-01521
• Citation: 192 A.D.3d 1528,145 N.Y.S.3d 224
• Parties: The PEOPLE of the State of New York, Respondent, v. Orlando HERNANDEZ, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 1528

145 N.Y.S.3d 224

The PEOPLE of the State of New York, Respondent,

v.Orlando HERNANDEZ, Defendant-Appellant.

886

KA 17-01521

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

Entered: March 19, 2021

HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CARNI, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of assault in the second degree ( Penal Law § 120.05 [7] ), arising out of separate incidents in which he struck fellow inmates while incarcerated in the Livingston County Jail. We reject the contention of defendant that he was denied his statutory right to testify before the grand jury. Defendant failed to serve the requisite written notice upon the District Attorney that he intended to testify before the grand jury (see CPL 190.50 [5] [a] ; see also People v. Perez , 67 A.D.3d 1324, 1325, 888 N.Y.S.2d 689 [4th Dept. 2009], lv denied 13 N.Y.3d 941, 895 N.Y.S.2d 331, 922 N.E.2d 920 [2010] ), and County Court was entitled to credit the hearing testimony of defendant's former attorney that he had met with defendant, and that he and defendant had discussed the charges and both agreed that defendant should not testify before the grand jury (see People v. Weis , 56 A.D.3d 900, 902, 867 N.Y.S.2d 250 [3d Dept. 2008], lv denied 12 N.Y.3d 763, 876 N.Y.S.2d 715, 904 N.E.2d 852 [2009] ; People v. Dickens , 259 A.D.2d 450, 450, 688 N.Y.S.2d 509 [1st Dept. 1999], lv denied 93 N.Y.2d 1002, 695 N.Y.S.2d 748, 717 N.E.2d 1085 [1999] ). We note that, although defendant sent a letter to the District Attorney three days prior to the grand jury proceeding, defendant did not indicate in that letter that he intended to testify before the grand jury.

To the extent that defendant further contends that he was denied effective assistance of counsel on the ground that his former attorney failed to effectuate his intent to testify before the grand jury, we reject that contention. The attorney testified that he and defendant had agreed to "a strategic decision not to testify at the [g]rand [j]ury," and defendant's conclusory allegations fail to establish that there were no strategic or other legitimate explanations for defense counsel's alleged failure (see People v. Galleria , 264 A.D.2d 899, 900, 696 N.Y.S.2d 96 [3d Dept. 1999], lv denied 94 N.Y.2d 880, 705 N.Y.S.2d 12, 726 N.E.2d 489 [2000] ). In any event, defense counsel's alleged failure would not constitute ineffective assistance of counsel absent a showing of prejudice (see generally People v. Hogan , 26 N.Y.3d 779, 787, 28 N.Y.S.3d 1, 48 N.E.3d 58 [2016] ; Dickens , 259 A.D.2d at 450-451, 688 N.Y.S.2d 509 ), and defendant has failed to "establish[ ] that ‘he was prejudiced by the failure of [defense counsel] to effectuate his appearance before the grand jury’ " ( People v. James , 92 A.D.3d 1207, 1208, 937 N.Y.S.2d 798 [4th Dept. 2012], lv denied 19 N.Y.3d 962, 950 N.Y.S.2d 114, 973 N.E.2d 212 [2012], quoting People v. Simmons , 10 N.Y.3d 946, 949, 862 N.Y.S.2d 852, 893 N.E.2d 130 [2008] ) "or that, had he testified in the grand jury, the outcome would have been different" ( People v. Coleman , 134 A.D.3d 1555, 1557, 22 N.Y.S.3d 776 [4th Dept. 2015], lv denied 27 N.Y.3d 963, 36 N.Y.S.3d 625, 56 N.E.3d 905 [2016] [internal quotation marks omitted]; see People v. Robinson , 151 A.D.3d 1701, 1701, 53 N.Y.S.3d 858 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017] ).

We similarly reject defendant's contention that he was denied effective assistance of counsel by defense counsel's failure to file a motion to dismiss the indictment pursuant to CPL 190.50 (5) (c). As noted above, defendant did not serve the requisite written notice upon the District Attorney that he intended to testify before the grand jury (see CPL 190.50 [5] [a] ), and it is well settled that "[t]here can be no denial of effective assistance of ... counsel arising from [defense] counsel's failure to ‘make a motion or argument that has little or no chance of success’ " ( People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005], quoting People v. Stultz , 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004] ).

We also reject defendant's contention that defense counsel was ineffective for failing to adequately challenge the composition of the jury pool. A defendant objecting to the composition of the jury pool bears "the burden of demonstrating ‘that a substantial and identifiable segment of the community was not included in the jury pool based on a systematic exclusion of that group’ " ( People v. Blanchard , 279 A.D.2d 808, 811, 718 N.Y.S.2d 722 [3d Dept. 2001], lv denied 96 N.Y.2d 826, 729 N.Y.S.2d 446, 754 N.E.2d 206 [2001] ). Thus, in order to meet defendant's burden, defense counsel needed to "demonstrat[e] ‘that the alleged underrepresentation was caused by intentional discrimination or that the jurors had been systematically excluded from the jury pool’ " ( id. ). Inasmuch as there is no evidence in the record to establish that Hispanics were underrepresented in the jury pool or that "the absence of [Hispanics] on the jury panel was a result of a flawed selection process intended to exclude them" ( People v. Levy , 52 A.D.3d 1025, 1025, 859 N.Y.S.2d 527 [3d Dept. 2008] ; see People v. Clarke , 5 A.D.3d 807, 810, 772 N.Y.S.2d 630 [3d Dept. 2004], lv denied 2 N.Y.3d 797, 781 N.Y.S.2d 296, 814 N.E.2d 468 [2004] ), we cannot conclude that defense counsel's failure to make those arguments deprived defendant of effective assistance of counsel.

Defendant further contends that defense counsel was ineffective for failing to "raise a mental health or defect defense" and for failing to request to call an expert witness to testify about posttraumatic stress disorder. Defendant's conclusory allegations, however, fail to " ‘demonstrate the absence of strategic or other legitimate explanations’ for [those] alleged shortcomings" ( People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; see People v. Johnson , 103 A.D.3d 1251, 1251-1252, 959 N.Y.S.2d 365 [4th Dept. 2013], lv denied 21 N.Y.3d 1005, 971 N.Y.S.2d 257, 993 N.E.2d 1279 [2013] ). Viewing the evidence, the law and the circumstances of the case in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).

By failing to renew his motion for a trial order of dismissal after presenting evidence, defendant failed to preserve for our review his contention that the evidence at trial is legally insufficient to establish that he intended to cause physical injury to the victims (see People v. Moreland , 103 A.D.3d 1275, 1275-1276, 962 N.Y.S.2d 536 [4th Dept. 2013], lv denied 21 N.Y.3d 945, 968 N.Y.S.2d 7, 990 N.E.2d 141 [2013] ; People v. Green , 74 A.D.3d 1899, 1900, 903 N.Y.S.2d 844 [4th Dept. 2010], lv denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821 [2010] ). In any event, we conclude that 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 [1983] ), is legally sufficient to establish that defendant possessed the requisite intent. Here, both incidents were captured by the surveillance cameras in the jail, and the video evidence established, inter alia, that defendant approached the first victim and struck him numerous times. Defendant then approached the second victim, grabbed him by his hair, pulled his head back, let go and punched him in the side of his head. The first victim's injuries included a fractured jaw

, and the second victim sustained a ruptured eardrum with hearing loss.

Viewing the evidence in light of the elements of the crime 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 [2007] ), we reject defendant's contention that the verdict is 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 [1987] ). The jury was entitled to credit the victims’ testimony (see id. ), which was corroborated by the video recording and also by the evidence of their injuries, and which "was not rendered incredible as a matter of law ... by the fact that [the victims] had criminal histories" ( People v. Resto , 147 A.D.3d 1331, 1334, 47 N.Y.S.3d 522 [4th Dept. 2017], lv denied 29 N.Y.3d 1000, 57 N.Y.S.3d 722, 80 N.E.3d 415 [2017], reconsideration denied 29 N.Y.3d 1094, 63 N.Y.S.3d 10, 85 N.E.3d 105 [2017] ; see People v. Huff , 133 A.D.3d 1223, 1226, 19 N.Y.S.3d 378 [4th Dept. 2015], lv denied 27 N.Y.3d 999, 38 N.Y.S.3d 109, 59 N.E.3d 1221 [2016] ). Although defendant testified that he feared for his own safety and did not intend to injure either of the two inmates, the video evidence fails to support defendant's testimony that those inmates instigated the incidents, and the jury was justified in inferring based on defendant's actions that he intended to cause them physical injury (see Moreland , 103 A.D.3d at 1276, 962 N.Y.S.2d 536 ).

Defendant contends that he was denied his right to present a defense because the court precluded him from calling a proposed witness to provide testimony on the issue of justification. We reject that contention inasmuch as it is not supported by the record (see generally People v. Yancey , 277 A.D.2d 931, 931, 715 N.Y.S.2d 925 [4th Dept. 2000], lv denied 96 N.Y.2d 740, 722...