People v. Hill

• Decision Date: 25 March 2011
• Citation: 2011 N.Y. Slip Op. 02301,82 A.D.3d 1715,919 N.Y.S.2d 688
• Parties: The PEOPLE of the State of New York, Respondent,v.Eric D. HILL, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 1715
919 N.Y.S.2d 688
2011 N.Y. Slip Op. 02301

The PEOPLE of the State of New York, Respondent,
v.
Eric D. HILL, Defendant–Appellant.

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

March 25, 2011.

[919 N.Y.S.2d 689]

Timothy P. Donaher, Public Defender, Rochester (Timothy S. Davis of Counsel), for Defendant–Appellant.Eric D. Hill, Defendant–Appellant Pro Se.Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.PRESENT: MARTOCHE, J.P., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.MEMORANDUM:

[82 A.D.3d 1715] Defendant appeals from a judgment convicting him upon a jury verdict of two counts of murder in the second degree (Penal Law § 125.25 [1] ). The contention of defendant that he was deprived of a fair trial by prosecutorial misconduct on summation is not preserved for our review ( see CPL 470.05[2] ) and, in any event, that contention is without merit. The alleged instances of prosecutorial misconduct were “either a fair response to defense counsel's summation or fair comment on the evidence” ( People v. Anderson, 52 A.D.3d 1320, 1321, 859 N.Y.S.2d 852, lv. denied 11 N.Y.3d 733, 864 N.Y.S.2d 392, 894 N.E.2d 656).

We reject the contention of defendant in his main and pro se supplemental briefs that he was denied effective assistance of counsel. Defendant was arrested in Alabama more than one year after the murders. The record does not contain any evidence of an “ ‘innocent explanation’ ” for defendant's presence [82 A.D.3d 1716] in Alabama at that time ( People v. Solimini, 69 A.D.3d 657, 658, 892 N.Y.S.2d 480, lv. denied 14 N.Y.3d 893, 903 N.Y.S.2d 781, 929 N.E.2d 1016). Contrary to the contention of defendant, we conclude that defense counsel's failure to request a jury charge regarding consciousness of guilt based upon defendant's flight was a valid tactical decision to avoid unnecessarily focusing the attention of the jury on defendant's travel to Alabama following the murders ( see CJI2d [N.Y.] Consciousness of Guilt; see generally People v. Peake, 14 A.D.3d 936, 937–938, 788 N.Y.S.2d 501). Defendant was not denied effective assistance of counsel based on defense counsel's failure to object to the allegedly improper comments by the prosecutor on summation inasmuch as those comments did not constitute prosecutorial misconduct ( see generally People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213). With respect to the alleged ineffective assistance of defense counsel in cross-examining the eyewitness and in stipulating to the admission in evidence of an autopsy photograph of one of the victims for the limited purpose of identifying him, we conclude that, when viewed as a whole, defense counsel's efforts reflect “a reasonable and legitimate strategy under the circumstances and evidence presented” ( People v. Benevento, 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584).

[919 N.Y.S.2d 690]

We therefore conclude that defendant...