People v. Ortiz, 1337

• Decision Date: 21 December 2018
• Docket Number: 1337,KA 15–02050
• Citation: 90 N.Y.S.3d 793,167 A.D.3d 1562
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony S. ORTIZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 1562
90 N.Y.S.3d 793

The PEOPLE of the State of New York, Respondent,
v.
Anthony S. ORTIZ, Defendant–Appellant.

1337
KA 15–02050

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

Entered: December 21, 2018

EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT–APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CENTRA, CARNI, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

167 A.D.3d 1563

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

Memorandum: On appeal from a judgment convicting him following a jury trial of murder in the second degree ( Penal Law § 125.25[1] ), assault in the second degree (§ 120.05[2] ), and two counts of criminal possession of a weapon in the second degree (§ 265.03[1][b]; [3] ), defendant contends that he was deprived of effective assistance of counsel because defense counsel failed to ask County Court to instruct the jury on a justification defense and objected to the prosecutor's request that the jury be charged with manslaughter in the first degree (§ 125.20[1] ) as a lesser included offense of murder in the second degree. We reject that contention.

90 N.Y.S.3d 795

"[I]t is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations" for defense counsel's allegedly deficient conduct ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ), and defendant failed to meet that burden here (see People v. Hicks, 110 A.D.3d 1488, 1489, 972 N.Y.S.2d 800 [4th Dept. 2013], lv denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014] ). Although there was a reasonable view of the evidence that defendant was justified in shooting one of the victims, who was chasing defendant as he fled a violent brawl, defense counsel...