People v Kholodenko (Oleg)

[*1] People v Kholodenko (Oleg) 2007 NY Slip Op 51673(U) [16 Misc 3d 136(A)] Decided on August 24, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 24, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-744 K CR.

The People of the State of New York, Respondent,

against

Oleg Kholodenko, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Jerome Kay, J.), rendered April 21, 2006. The judgment, after a nonjury trial, convicted defendant of disorderly conduct.

Judgment of conviction reversed on the law, fine and surcharge, if paid, remitted, and matter remanded to the court below for a new trial.

Upon a review of the record, we find the verdict was not against the weight of the evidence (see CPL 470.15 [5]; People v Bleakley, 69 NY2d 490 [1987]). However, defendant has also raised a claim of ineffective assistance of counsel. In this regard, it should be noted that the record is silent as to counsel's participation, if any, in the pre-trial reduction of the charge from reckless driving to disorderly conduct. Counsel did not offer an opening or closing statement and, even though the question of defendant's guilt or innocence was predicated on credibility, counsel did not cross-examine the People's sole witness. In addition, defendant testified in the narrative and responded to questions by the court. Counsel's participation at trial was limited to noting that defendant was pleading not guilty, agreeing to the reduction of the charge, asking defendant to explain what happened and objecting to one question posed to the complainant police officer by the court. Counsel made no motions and failed to assist her client in developing a defense. In view of the foregoing, it is our opinion that defendant's counsel provided less than meaningful representation (see People v Henry, 95 NY2d 563, 565 [2000]; People v Benevento, 91 NY2d 708, 712 [1998]). Accordingly, a new trial is required.

Pesce, P.J., and Belen, J., concur. [*2]

Weston Patterson, J., dissents in a separate memorandum.

Weston Patterson, J., dissents and votes to affirm the judgment of conviction in the following memorandum:

I disagree with the majority's opinion and would affirm on the ground that defendant's ineffective assistance of counsel claim is unreviewable. Defendant was charged with reckless driving after backing up on a one-way street into a cross walk, and almost striking two pedestrians while on a cell phone. Following a brief bench trial in the universal summons part, defendant was convicted of disorderly conduct and fined.

On appeal, defendant claims, for the first time, that his attorney was ineffective because her representation was "less than enthusiastic." Although defense counsel elected not to deliver an opening or a closing statement, or to cross-examine the police witness, the record fails to " demonstrate the absence of strategic or other legitimate explanations' for counsel's allegedly deficient conduct" (People v Caban, 5 NY3d 143, 152 [2002], quoting People v Rivera, 71 NY2d 705, 709 [1988]). Absent such a showing, defendant cannot overcome the strong presumption that counsel acted competently (People v Silent, 37 AD3d 625 [2007]). In any event, to the extent the existing record permits review and in light of the court's reduction of the charge from a misdemeanor to a violation and the imposition of a fine rather than points on defendant's license, I find that defendant received meaningful representation (People v Benevento, 91 NY2d 708 [1998]).

Accordingly, I vote to affirm the judgment of conviction.
Decision Date: August 24, 2007