People v Marchetti (Peter)

[*1] People v Marchetti (Peter) 2015 NY Slip Op 51434(U) Decided on September 18, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 18, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., TOLBERT and CONNOLLY, JJ.
2013-1343 S CR

The People of the State of New York, Respondent,

against

Peter Marchetti, Appellant.

Appeal from a judgment of the District Court of Suffolk County, First District (Steven A. Lotto, J.), rendered May 2, 2013. The judgment convicted defendant, upon a jury verdict, of assault in the third degree and resisting arrest.

ORDERED that the judgment of conviction is affirmed.

Defendant and the complainant, who were neighbors, were involved in a long-running dispute regarding their property line. On May 9, 2009, the dispute turned physical. At a jury trial, the prosecution presented evidence that defendant stabbed the complainant in the left arm and chin with a metal garden trowel, and that defendant prevented two Suffolk County police officers from arresting him. Following the trial, the jury acquitted defendant of menacing in the second degree (Penal Law § 120.14 [1]); however, it convicted him of assault in the third degree (Penal Law § 120.00 [1]) and resisting arrest (Penal Law § 205.30).

Defendant claims that the District Court should have declared a mistrial, after the complainant blurted out evidence regarding a prior incident involving defendant and the complainant's domestic partner, which the court had determined was inadmissible. The argument lacks merit. The prosecutor did not intentionally elicit the complainant's response (see People v White, 297 AD2d 587, 588 [2002]; cf. People v Gilliard, 171 AD2d 531, 532 [1991]). Moreover, the court offered, but defendant's counsel declined, to provide the jury with a curative instruction to disregard the improper testimony, which instruction would have been sufficient to alleviate any prejudice based on the testimony regarding the earlier incident (see People v Santiago, 52 NY2d 865 [1981]; People v Young, 48 NY2d 995 [1980]; People v Caba, 101 AD3d 896, 897 [2012]; People v Miller, 78 AD3d 733, 734 [2010]; People v Johnson, 67 AD3d 560 [2009]; People v Moret, 290 AD2d 250, 250-251 [2002]).

The District Court correctly declined to provide the jury with a justification charge pursuant to Penal Law § 35.25, whereby physical force may be used to prevent or terminate a larceny or criminal mischief. Viewing the evidence in the light most favorable to defendant, there was no reasonable view of the evidence supporting a conclusion that defendant used physical force to prevent or terminate a larceny (see People v Velez, 198 AD2d 26, 27 [1993]; cf. People v Verdon, 172 AD2d 863 [1991]). Alternatively, the use of a metal garden trowel allegedly to prevent the complainant, who was unarmed, from stealing defendant's property, constituted an excessive use of force, thereby precluding the defense of justification pursuant to Penal Law § 35.25 (see Matter of Y.K., 87 NY2d 430, 433 [1996]; People v Vecchio, 240 AD2d [*2]854, 855 [1997]).

Defendant was afforded the effective assistance of trial counsel. He has not established that, when the evidence, the law, and the circumstances of the case are viewed together as of the time of the representation, trial counsel failed to provide meaningful representation (see People v Baker, 14 NY3d 266, 270 [2010]; People v Turner, 5 NY3d 476, 480 [2005]; People v Caban, 5 NY3d 143, 152 [2005]; People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 146-147 [1981]; People v Bruno, 127 AD3d 1101 [2015]). Defendant failed to "demonstrate the absence of strategic or other legitimate explanations" for any alleged error, "rather than [defendant's] simple disagreement with strategies and tactics" (People v Rivera, 71 NY2d 705, 708-709 [1988]; see People v Caban, 5 NY3d at 154). Defendant's claims of ineffective assistance constitute second-guessing of trial counsel's efforts "with the clarity of hindsight to determine how the defense might have been more effective" (People v Benevento, 91 NY2d at 712). Under the unique circumstances of this case, defendant's counsel pursued "a reasonable and legitimate strategy" (People v Benevento, 91 NY2d at 713; see People v Berroa, 99 NY2d 134, 138 [2002]; People v Baldi, 54 NY2d at 146).

Accordingly, the judgment of conviction is affirmed.

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

Decision Date: September 18, 2015