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People v. Leath

98 A.D.3d 690 Court N.Y. App. Div. Decision date 2012-08-22 English

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p. 690
The People of the State of New York, Respondent, v John Leath, Appellant.
[950 NYS2d 277]

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered October 28, 2009, convicting him of murder in the second degree and tampering with physical evidence, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that he was deprived of the effective assistance of counsel. “Under the New York Constitution, ‘[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met’ ” (People v Collado, 90 AD3d 672 , 672-673 [2011], quoting People v Baldi, 54 NY2d 137 , 147 [1981]; see People v Benevento, 91 NY2d 708 , 712 [1998]; People v Bowles, 89 AD3d 171 [2011]). “[I]neffectiveness claims must be viewed within the context of

p. 691
the fairness of the process as a whole rather than its particular impact on the outcome of the case” (People v Clermont, 95 AD3d 1349 , 1351 [2012]; see People v Benevento, 91 NY2d at 714 ). “Isolated errors in counsel’s representation generally will not rise to the level of ineffectiveness, unless the error is so serious that defendant did not receive a fair trial” (People v Henry, 95 NY2d 563 , 565-566 [2000], quoting People v Flores, 84 NY2d 184 , 188-189 [1994] [internal quotation marks omitted]; see People v Collado, 90 AD3d at 673 ). Here, contrary to the defendant’s contention, he was not deprived of the effective assistance of counsel. Viewed in totality, defense counsel provided meaningful representation (see People v Benevento, 91 NY2d at 712 ; People v Baldi, 54 NY2d at 147 ).

Moreover, the Supreme Court properly declined to charge manslaughter in the second degree as a lesser-included offense of murder in the second degree. There was no reasonable view of the evidence that would support a finding that the defendant acted recklessly in causing the victim’s death (see People v Pizarro, 89 AD3d 871 [2011]; People v Davis, 300 AD2d 673 , 674 [2002]).

Further, there is no merit to the defendant’s contention that the Supreme Court erred in permitting the prosecution to elicit hearsay testimony from a witness relating to the defendant’s motive, as this testimony was admissible under the “state-of-mind” exception to the hearsay rule (see People v Damon, 78 AD3d 860 [2010]; People v Jean-Baptiste, 51 AD3d 1037 , 1038 [2008]; People v Rose, 41 AD3d 742 , 742-743 [2007]).

The defendant’s contention, raised in point 5 of his brief, is without merit. The defendant’s remaining contentions are unpreserved for appellate review, and, in any event, without merit. Dillon, J.P., Leventhal, Austin and Roman, JJ., concur.

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