People v Arroyo (Julio)

[*1] People v Arroyo (Julio) 2015 NY Slip Op 50818(U) Decided on May 19, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 19, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., TOLBERT and GARGUILO, JJ.
2013-680 OR CR

The People of the State of New York, Respondent,

against

Julio J. Arroyo, Jr., Appellant.

Appeal from a judgment of the City Court of Middletown, Orange County (Robert F. Moson, J.), rendered March 20, 2013. The judgment convicted defendant, upon a jury verdict, of endangering the welfare of a child (two counts), attempted assault in the third degree, and harassment in the second degree.

ORDERED that the judgment of conviction is affirmed.

Defendant's conviction stemmed from an incident that occurred in the parking lot of a drugstore, during which defendant punched the complainant twice in the head. The complainant's girlfriend stood near the complainant during the incident. Defendant contends that he was denied the effective assistance of trial counsel.

Defendant failed to prove that his trial counsel lacked any strategic or other legitimate explanations for counsel's alleged shortcomings (see People v Baker, 14 NY3d 266, 270-271 [2010]; People v Benevento, 91 NY2d 708, 712 [1998]; People v Rivera, 71 NY2d 705, 709 [1988]; People v Starr, 114 AD3d 813, 814 [2014]; People v Arnold, 85 AD3d 1330, 1332-1333 [2011]; cf. People v Oathout, 21 NY3d 127 [2013]; People v Miller, 11 AD3d 729 [2004]). Instead, counsel advanced "an objectively reasonable and legitimate trial strategy under the circumstances and evidence presented" (People v Miller, 81 AD3d 854, 855 [2011]; see People v Berroa, 99 NY2d 134, 138 [2002]; People v Benevento, 91 NY2d at 712-713). Counsel presented a plausible justification defense. He vigorously challenged the People's Sandoval application, which was renewed before defendant testified in his own behalf. Counsel delivered a clear and cogent opening statement and summation, based on the justification defense. He cross-examined the witnesses most likely to provide testimony favorable to defendant. He prevailed on the court to provide the jury with a consciousness of guilt charge that was more favorable to the defense than the standard charge.

Thus, under the particular circumstances of this case, defendant was afforded the effective assistance of trial counsel under the federal standard (see Strickland v Washington, 466 US 668, 694 [1984]; People v Delgado, 101 AD3d 1144, 1145-1146 [2012]; People v Bodden, 82 AD3d 781, 783 [2011]). Defendant was also afforded effective assistance of trial counsel under the New York standard, as counsel's errors were not so serious as to deprive defendant of a fair trial, and the process as a whole was fair. Consequently, the law, the evidence and the circumstances of this case, viewed in totality, indicate that defendant was afforded meaningful representation (see People v Stultz, 2 NY3d 277, 279 [2004]; People v Henry, 95 NY2d 563, 565-566 [2000]; People v Benevento, 91 NY2d at 712; People v Baldi, 54 NY2d 137 [1981]; People v Delgado, 101 AD3d at 1146; People v Leath, 98 AD3d 690, 690-691 [2012]).

As defendant retained counsel after he requested the substitution of his assigned Legal Aid attorney, and the retained counsel represented defendant at trial, the denial of his request for substitution of assigned counsel has been rendered academic (see People v Pollard, 78 AD3d 618, 618-619 [2010]).

Accordingly, the judgment of conviction is affirmed.

Iannacci, J.P., Tolbert and Garguilo, JJ., concur.

Decision Date: May 19, 2015