People v. Rodriguez — 92 A.D.3d 902

Majority

p. 902

The People of the State of New York, Respondent, v Roberto Rodriguez, Appellant.

[940 NYS2d 647]

Contrary to the defendant’s contention, he was not deprived of the effective assistance of counsel as a result of his trial counsel’s failure to move for a severance of his trial from that of his codefendant (see People v Velez, 78 AD3d 1522 , 1522-1523 [2010]; People v Alvarenga, 25 AD3d 560 , 561 [2006]; People v Ruger, 288 AD2d 686 , 687 [2001]). “Nor does the defendant’s disagreement with his trial counsel’s tactics on cross-examination render the representation less than meaningful” (People v Alvarenga, 25 AD3d at 561 ; see People v Benevento, 91 NY2d 708 , 712-713 [1998]; People v Aiken, 45 NY2d 394 , 400 [1978]; People v DiCarlo, 293 AD2d 279 , 280-281 [2002]). Moreover, the defendant’s contention that, during summation, his counsel mischaracterized a witness’s testimony is without merit. Viewing the record as a whole, we conclude that the defendant received effective assistance of counsel under both federal and state standards (see Strickland v Washington, 466 US 668 , 694 [1984]; People v Caban, 5 NY3d 143 , 152-156 [2005]; People v Tomlinson, 67 AD3d 826 , 827 [2009]; People v Ross, 209 AD2d 730 [1994]).

p. 903

The defendant’s challenge to the sufficiency of the evidence, raised in his pro se supplemental brief, is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484 , 492 [2008]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383 , 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490 , 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

Further, contrary to the defendant’s contention, raised in his pro se supplemental brief, the trial court did not err in refusing to give an intoxication charge to the jury (see Penal Law § 15.25). Viewing the intoxication evidence in the light most favorable to the defendant (see People v Sirico, 17 NY3d 744 , 745 [2011]), we find that it was insufficient to allow a reasonable person to entertain doubt as to the element of intent based on intoxication (id.; see People v Gaines, 83 NY2d 925 , 927 [1994]; People v Oddone, 89 AD3d 868 [2011]; People v Albanese, 84 AD3d 1107 , 1108 [2011]; People v Brown, 73 AD3d 940 , 940-941 [2010]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Dillon, J.P, Leventhal, Helen and Lott, JJ., concur.

Cases cited

People v. Velez 78 AD3d 1522 N.Y. App. Div. 2010-11-12 at 1522-1523 p. 902
People v. Benevento 91 NY2d 708 N.Y. 1998-06-11 at 712-713 p. 902
People v. Aiken 45 NY2d 394 N.Y. 1978-07-11 at 400 p. 902
People v. DiCarlo 293 AD2d 279 N.Y. App. Div. 2002-04-04 at 280-281 p. 902
Strickland v. Washington 466 US 668 SCOTUS 1984-05-14 at 694 p. 902
People v. Caban 5 NY3d 143 N.Y. 2005-06-14 at 152-156 p. 902
People v. Ross 209 AD2d 730 N.Y. App. Div. 1994-11-28 p. 902
People v. Hawkins 11 NY3d 484 N.Y. 2008-11-25 at 492 p. 903
People v. Contes 60 NY2d 620 N.Y. 1983-09-01 p. 903
People v. Danielson 9 NY3d 342 N.Y. 2007-12-13 p. 903
Middleton v. McNeil 542 US 946 SCOTUS 2004-06-28 p. 903
People v. Bleakley 69 NY2d 490 N.Y. 1987-05-07 at 495 p. 903
People v. Romero 7 NY3d 633 N.Y. 2006-11-21 p. 903
People v. Sirico 17 NY3d 744 N.Y. 2011-06-07 at 745 p. 903
People v. Gaines 83 NY2d 925 N.Y. 1994-06-09 at 927 p. 903
People v. Oddone 89 AD3d 868 N.Y. App. Div. 2011-11-09 p. 903
People v. Albanese 84 AD3d 1107 N.Y. App. Div. 2011-05-17 at 1108 p. 903
People v. Brown 73 AD3d 940 N.Y. App. Div. 2010-05-11 at 940-941 p. 903
People v. Suitte 90 AD2d 80 N.Y. App. Div. 1982-11-22 p. 903