People v. Hernandez

• Citation: 210 A.D.2d 535,619 N.Y.S.2d 826
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose HERNANDEZ, Appellant.
• Decision Date: 01 December 1994
• Court: New York Supreme Court — Appellate Division

Page 826

619 N.Y.S.2d 826

210 A.D.2d 535

The PEOPLE of the State of New York, Respondent, v. Jose HERNANDEZ, Appellant.

Supreme Court, Appellate Division,

Third Department.

Dec. 1, 1994.

Jeffrey A. Rabin, New York City, for appellant.

Penelope D. Clute, Dist. Atty. (Catherine M. Paul, of counsel), Plattsburgh, for respondent.

Before CARDONA, P.J., and WHITE, CASEY and PETERS, JJ.

WHITE, Justice.

Appeal from a judgment of the County Court of Clinton County (Aison, J.), rendered August 30, 1993, upon a verdict convicting defendant of the crimes of murder in the second degree, criminal possession of a weapon in the third degree and promoting prison contraband in the first degree.

Defendant was indicted on the aforesaid three charges which arose out of a stabbing incident at Clinton Correctional Facility in Clinton County. As a result of his conviction of all three crimes, defendant moved, pursuant to CPL 330.30, to set aside the verdict on the ground that, inter alia, the People failed to disclose the fact that its main witness, Correction Officer Patrick O'Connor, had been arrested twice for driving while intoxicated, with one conviction and one charge pending at the time of trial. County Court denied the motion and defendant argues that this was a failure to disclose Rosario material which requires reversal of his convictions. While there is no question that the People must provide all pretrial statements of their witnesses to the defense and that a failure to do so cannot be considered inadvertent or harmless (see, People v. Novoa, 70 N.Y.2d 490, 522 N.Y.S.2d 504, 517 N.E.2d 219; People v. Ranghelle, 69 N.Y.2d 56, 511 N.Y.S.2d 580, 503 N.E.2d 1011), the Rosario rule does not apply here since neither a conviction nor a pending criminal action are considered Rosario material (see, CPL 240.45[1][b], [c]; People v. Clark, 194 A.D.2d 868, 598 N.Y.S.2d 847, lv denied 82 N.Y.2d 752, 603 N.Y.S.2d 994, 624 N.E.2d 180). Further, it was established that the People had no knowledge of either charge and thus the failure to provide this nonexculpatory information does not require reversal (see, People v. Wolf, 176 A.D.2d 1070, 575 N.Y.S.2d 726, lv. denied 79 N.Y.2d 1009, 584 N.Y.S.2d 464, 594 N.E.2d 958; People v. Welch, 154 A.D.2d 946, 545 N.Y.S.2d 884). In addition, defendant has not shown a reasonable probability that the result of the trial would have been different had this information been disclosed (see, People v. Chin, 67 N.Y.2d 22, 499 N.Y.S.2d 638, 490 N.E.2d 505).

At sentencing defendant argued that he was not properly represented during the trial and that effective representation would have resulted in his acquittal. We disagree. It is a long-standing rule that in reviewing any claim of ineffective assistance of counsel, care should be taken to avoid confusing true ineffectiveness with losing tactics and according undue analysis to retrospectiveness (see, People v. Flores, 84 N.Y.2d 184, 615 N.Y.S.2d 662, 639 N.E.2d 19; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400). The constitutional requirement of effective assistance of counsel is satisfied when the evidence, the law and the circumstances of the case, viewed in its entirety at the time of the representation, disclose that the attorney provided meaningful representation (see, People v. Satterfield, 66 N.Y.2d 796, 497 N.Y.S.2d 903, 488 N.E.2d 834). In the instant case defense counsel was prepared, made appropriate pretrial motions, effectively cross-examined the People's witnesses and otherwise ably represented his client. We thus find that County Court did not err in proceeding with the sentencing since defendant was not deprived of effective assistance of counsel (see, People v. Bariteau, 205 A.D.2d 880, 613 N.Y.S.2d 487; People v. Hope, 190 A.D.2d 958, 594 N.Y.S.2d 360, lv. denied 81 N.Y.2d 972, 598...