People v McNeill

People v McNeill 2010 NY Slip Op 04054 [73 AD3d 504] May 11, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 30, 2010

The People of the State of New York, Respondent,
v
Rodney McNeill, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Claudia Trupp of counsel), for appellant.

Rodney McNeill, appellant pro se.

Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), for respondent.

Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered January 29, 2008, convicting defendant, after a jury trial, of attempted murder in the second degree, assault in the first degree and criminal possession of a weapon in the second and third degrees, and sentencing him to an aggregate term of 19½ years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence for the attempted murder to 15 years, resulting in a new aggregate term of 15 years, and otherwise affirmed.

Defendant's challenge to the court's charge on prior inconsistent statements is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find that any deficiency in the charge was harmless (see People v Crimmins, 36 NY2d 230 [1975]). Although the victim and defendant gave different versions of how the victim came to receive multiple gunshot wounds, the evidence, viewed as a whole, overwhelmingly supported the victim's account and contradicted defendant's.

Defendant's claims of prosecutorial misconduct in cross-examination and summation are also unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).

Defendant received effective assistance of counsel under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]). Defendant argues that his counsel was ineffective for failing to object to allegedly improper aspects of the court's charge and the prosecutor's cross-examination. However, we conclude that counsel's failure to make these objections did not deprive defendant of a fair trial, affect the outcome of the case, or cause defendant any prejudice (see People v Caban, 5 NY3d 143, 155-156 [2005]; People v Hobot, 84 NY2d 1021, 1024 [1995]; compare People v Turner, 5 NY3d 476 [2005]). [*2]

The additional ineffective assistance arguments contained in defendant's pro se supplemental brief are unreviewable on the existing record. The remainder of the pro se claims are unpreserved, unreviewable, or otherwise procedurally barred.

Defendant's dismissal motion was properly denied as untimely.

We find the sentence excessive to the extent indicated. Concur—Tom, J.P., Sweeny, Moskowitz, DeGrasse and Manzanet-Daniels, JJ.