People v. Patrick

• Decision Date: 23 January 2013
• Citation: 102 A.D.3d 892,958 N.Y.S.2d 210,2013 N.Y. Slip Op. 00359
• Parties: The PEOPLE, etc., respondent, v. Shakim PATRICK, appellant.
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 892

958 N.Y.S.2d 210

2013 N.Y. Slip Op. 00359

The PEOPLE, etc., respondent,

v.Shakim PATRICK, appellant.

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

Jan. 23, 2013.

Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant, and appellant pro se.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Jennifer L. Feldman of counsel; Deborah Wei on the brief), for respondent.

RUTH C. BALKIN, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered September 10, 2008, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the trial court erred in failing to give an expanded identification charge is unpreserved for appellate review, as the defendant did not object to the identification charge as given by the court to the jury ( seeCPL 470.05[2]; People v. Carter, 44 A.D.3d 677, 843 N.Y.S.2d 381;see also People v. Gega, 74 A.D.3d 1229, 1231, 904 N.Y.S.2d 716;People v. James, 35 A.D.3d 762, 825 N.Y.S.2d 776). In any event, the charge as given “sufficiently apprised the jury that the reasonable doubt standard applied to identification” ( People v. Knight, 87 N.Y.2d 873, 874, 638 N.Y.S.2d 938, 662 N.E.2d 256). Furthermore, contrary to the defendant's contention, the court's charge to the jury regarding the prior statements of witnesses adequately conveyed the legal principles applicable to this case ( see People v. Padilla, 206 A.D.2d 271, 614 N.Y.S.2d 498;People v. Calderon, 182 A.D.2d 770, 582 N.Y.S.2d 769;see also People v. Ortiz, 250 A.D.2d 372, 672 N.Y.S.2d 327).

The defendant's argument regarding alleged prosecutorial misconduct during summation is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Dien, 77 N.Y.2d 885, 568 N.Y.S.2d 899, 571 N.E.2d 69;People v. Nuccie, 57 N.Y.2d 818, 455 N.Y.S.2d 593, 441 N.E.2d 1111). In any event, the comments alleged to be inflammatory and prejudicial were all either fair comment on the evidence ( see People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564), or responsive to arguments presented in the defense counsel's summation ( see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885).

The defendant contends that he was deprived of the effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a criminal defendant must overcome the strong presumption that defense counsel rendered effective assistance ( see People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400;People v. Myers, 220 A.D.2d 461, 632 N.Y.S.2d 27). Here, upon a review of the record in its entirety and without giving undue significance to retrospective analysis, we are satisfied that the defendant received the effective...