People v. Nguyen

• Decision Date: 22 December 2011
• Parties: The PEOPLE of the State of New York, Respondent, v. Thanh V. NGUYEN, Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09216
90 A.D.3d 1330
935 N.Y.S.2d 195

The PEOPLE of the State of New York, Respondent,
v.
Thanh V. NGUYEN, Appellant.

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

Dec. 22, 2011.

[935 N.Y.S.2d 197]

John R. Trice, Elmira, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Joshua E. Shapiro of counsel), for respondent.

Before: MERCURE, Acting P.J., PETERS, SPAIN, ROSE and KAVANAGH, JJ.

SPAIN, J.

[90 A.D.3d 1330] Appeals from two judgments of the County Court of Broome County (Smith, J.), rendered June 4, 2010, convicting defendant following two nonjury trials of the crimes of criminal possession of a controlled substance in the third degree (two counts), criminal sale of a controlled substance in the third degree (three counts), burglary in the first degree, assault in the second degree and petit larceny.

At defendant's nonjury trial, Thomas Walczak, an undercover investigator with the State Police assigned to the Community Narcotics Enforcement Team, testified that he called defendant's cell phone on March 25, 2009 and arranged to meet him at [90 A.D.3d 1331] a fast food restaurant in the Village of Endicott, Broome County, where defendant sold him 10 glassine envelopes of heroin for $170. On the morning of March 31, 2009, defendant again sold heroin to Walczak, who paid defendant with $170 in prerecorded (and photocopied) buy money. Later that evening, around 7:00 P.M., defendant, for a third time, sold 10 envelopes of heroin to Walczak, who again paid with $170 in prerecorded buy money. Defendant was arrested within minutes, after Walczak confirmed that the Village of Johnson City police officers had the correct person in custody. Upon defendant's arrest, police recovered on or near defendant $180 in prerecorded buy money, $4,450 in cash, defendant's cell phone, a padlock tied to a tubesock, packets of heroin and a small amount of cocaine. Defendant was convicted, as charged in an indictment, of two counts of criminal possession of a controlled substance in the third degree and three counts of criminal sale of a controlled substance in the third degree (hereinafter the drug trial).

Defendant was also separately indicted, and convicted after a separate nonjury trial, of burglary in the first degree, assault in the second degree and petit larceny (hereinafter the burglary trial). Those charges stem from defendant's conduct at around 11:20 A.M. on March 31, 2009, while under police surveillance following his drug sale to Walczak earlier that morning. Defendant went to the home of Timothy Kinne to confront him about a camera, the ownership of which was disputed. Kinne testified that he was home alone, in the shower, when defendant entered through an unlocked door, Kinne exited the shower and defendant shoved the bathroom door into Kinne's chest. An altercation ensued and Kinne recounted that defendant again slammed the door into him, hit him with a padlock tied to a tubesock, threatened him, demanded money and then left, taking Kinne's cell phone. Defendant testified, admitting that he went to

[935 N.Y.S.2d 198]

Kinne's home angry at him, entered without permission and confronted Kinne, pushing the door into Kinne to scare but not hurt him; however, he claimed Kinne attacked him and they fought, but he denied hitting Kinne with the padlock.

Upon all of his convictions, defendant was sentenced as a second felony offender (a second violent felony offender on the burglary conviction) to concurrent sentences, the maximum aggregate being 16 years with five years of postrelease supervision. Defendant now appeals, contending that he was deprived of the effective assistance of counsel, pointing to a litany of alleged errors committed by his retained counsel at both nonjury trials.

Upon our review of the record of each nonjury trial, viewed in [90 A.D.3d 1332] totality, we find that defendant was afforded meaningful representation ( see People v. Henry, 95 N.Y.2d 563, 565, 721 N.Y.S.2d 577, 744 N.E.2d 112 [2000]; People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ). Any omissions or imperfections in counsel's representation were not so egregious as to deprive defendant of a fair trial ( see People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19 [1994] ).

Initially, defendant's contention that counsel failed to advise him of his right to testify before the grand jury that indicted him on the drug charges lacks merit, as the record reflects that counsel had not yet been retained on the drug charges when the case was presented to the grand jury and the indictment was handed up on June 30, 2009. There are no facts in the record to support a claim that defendant was deprived of his right to...