People v. Hoffman, 838.1

• Decision Date: 29 June 2018
• Docket Number: 838.1,KA 12–01596
• Citation: 79 N.Y.S.3d 824,162 A.D.3d 1753
• Parties: The PEOPLE of the State of New York, Respondent, v. Darrell HOFFMAN, also known as Durrell, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 1753
79 N.Y.S.3d 824

The PEOPLE of the State of New York, Respondent,
v.
Darrell HOFFMAN, also known as Durrell, Defendant–Appellant.

838.1
KA 12–01596

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

Entered: June 29, 2018

DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, AND CURRAN, JJ.

MEMORANDUM AND ORDER

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

Memorandum: We previously held this case, reserved decision, and remitted the matter to Supreme Court for a hearing pursuant to People v. Rodriguez, 79 N.Y.2d 445, 451–453, 583 N.Y.S.2d 814, 593 N.E.2d 268 (1992) to determine whether "Witness # 1" was sufficiently familiar with defendant in order to render the single photo identification of defendant by that witness "truly confirmatory in nature" ( People v. Hoffman, 140 A.D.3d 1604, 1605, 34 N.Y.S.3d 546 [4th Dept. 2016] ). We conclude that the court properly determined upon remittal that such a hearing was unnecessary inasmuch as defense

79 N.Y.S.3d 826

counsel advised the court that "Witness # 1" is the brother of defendant, thereby rendering his identification of defendant merely confirmatory (see generally People v. Rodriguez, 47 A.D.3d 417, 417, 849 N.Y.S.2d 232 [1st Dept. 2008], lv denied 10 N.Y.3d 816, 857 N.Y.S.2d 49, 886 N.E.2d 814 [2008] ). We reject defendant's contention that the court was required to obtain the waiver of such hearing directly from him. "[A] defendant who has a lawyer relegates control of much of the case to the lawyer except as to certain fundamental decisions reserved to the client," such as "deciding whether to plead guilty, whether to waive a jury, whether to testify at trial, and whether to take an appeal" ( People v. Ferguson, 67 N.Y.2d 383, 390, 502 N.Y.S.2d 972, 494 N.E.2d 77 [1986] ). "With respect to strategic and tactical decisions concerning the conduct of trials, by contrast, defendants are deemed to repose decision-making authority in their lawyers" ( People v. Colon, 90 N.Y.2d 824, 826, 660 N.Y.S.2d 377, 682 N.E.2d 978 [1997] ). "By accepting counseled representation, a defendant assigns control of much of the case to the lawyer, who, by reason of training and experience, is entrusted with sifting out weak arguments, charting strategy and making day-to-day decisions over the course of the proceedings" ( People v. Rodriguez, 95 N.Y.2d 497, 501–502, 719 N.Y.S.2d 208, 741 N.E.2d 882 [2000] ).

Here, defense counsel's decision to forego a Rodriguez hearing as superfluous "is precisely the type of day-to-day decision making over which an attorney, in his or her professional judgment, retains sole authority" ( People v. Parker, 290 A.D.2d 650, 651, 736 N.Y.S.2d 162 [3d Dept. 2002], lv denied 97 N.Y.2d 759, 742 N.Y.S.2d 620, 769 N.E.2d 366 [2002], reconsideration denied 98 N.Y.2d 679, 746 N.Y.S.2d 469, 774 N.E.2d 234 [2002] ; see Colon, 90 N.Y.2d at 825–826, 660 N.Y.S.2d 377, 682 N.E.2d 978 ; Ferguson, 67 N.Y.2d at 390–391, 502 N.Y.S.2d 972, 494 N.E.2d 77 ; People v. Trepasso, 197 A.D.2d 891, 891, 602 N.Y.S.2d 291 [4th Dept. 1993], lv denied 82 N.Y.2d 854, 606 N.Y.S.2d 606, 627 N.E.2d 527 [1993] ). Furthermore, in making his decision to waive the hearing, defense counsel stated that he had "discussed this with [defendant]." Although defendant was present, he did not protest defense counsel's decision. There is thus "no indication in the record that defense counsel's position differed from that of" defendant ( People v. Gottsche, 118 A.D.3d 1303, 1304, 987 N.Y.S.2d 736 [4th Dept. 2014], lv denied 24 N.Y.3d 1084, 1 N.Y.S.3d 11, 25 N.E.3d 348 [2014] ; see People v. Hartle, 122 A.D.3d 1290, 1292, 995 N.Y.S.2d 424 [4th Dept. 2014], lv denied 25 N.Y.3d 1164, 15 N.Y.S.3d 296, 36 N.E.3d 99 [2015] ).

We reject defendant's contention that the court erred in refusing to suppress identifications made by "Witness # 2" and a codefendant on the ground that the photo array was unduly suggestive. "A photo array is unduly suggestive where some...