People v. Vanterpool

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldman, J.), rendered March 18, 1986, convicting him of assault in the first degree and criminal possession of a weapon in the second degree, after a nonjury trial, and imposing sentence. Ordered that the judgment is affirmed. Viewing the evidence in a light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to support the defendant’s conviction. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the- weight of the evidence (CPL 470.15 [5]). With respect to the defendant’s claim that he was denied effective representation of counsel, we note that the defendant’s sole expression of dissatisfaction with his attorney’s trial advocacy in this nonjury case concerns the quality of counsel’s summation. While counsel’s summation was decidedly lacking in clarity, review of his performance in its entirety, in conjunction with the evidence, the law, and the circumstances of the case (see, People v Baldi, 54 NY2d 137, 147, on remand 87 AD2d 843, appeal after remand 96 AD2d 212), reveals that defendant received the effective assistance of counsel to which he was constitutionally entitled. The dissent misconstrues the standard to be applied to allegations of ineffective assistance by highlighting a single aspect of counsel’s performance, thereby eschewing the fundamental precept that counsel’s representation must be viewed in its totality before it can be branded as constitutionally defective (see, People v Baldi, supra; see also, People v Strempack, 71 NY2d 1015; People v Montana, 71 NY2d 705; People v Lane, 60 NY2d 748; People v Rose, 57 NY2d 837, rearg denied 58 NY2d 779; People v Tommaselli, 102 AD2d 943). It is notable in this respect, that with the exception of counsel’s summation, the defendant has not even attempted to argue that his attorney’s advocacy during the trial was anything less than fully effective. Indeed, the record reveals that defense counsel, among other things, ably cross-examined the People’s witnesses, presented his own witnesses and competently eli [283] cited the defendant’s exclupatory version of the events surrounding the shooting, which testimony, it is notable, is relied upon by the defendant on appeal, arguing in his first appellate point that his guilt was not proven beyond a reasonable doubt. Significantly, neither the defendant in his brief, nor our colleague in his dissent, has identified a specific passage in the summation in which counsel committed arguably indefensible errors, such as the making of concessions or admissions palpably damaging to the defendant’s case (see, e.g., People v Wilson, 133 AD2d 179; People v Ofunniyin, 114 AD2d 1045; People v Wagner, 104 AD2d 457). Moreover, the dissenter’s reliance upon, and extensive quotation from, the Supreme Court’s decision in Herring v New York (422 US 853) is inapposite, since in that case the court had before it, and ultimately struck down, a statute — former CPL 320.20 (3) (c) — which empowered a Trial Judge in a nonjury case to dispense with closing arguments altogether. While we have no quarrel with the dissenter’s contentions in respect to the import of a defense counsel’s summation, the pertinent inquiry presented at bar is whether, when viewed in its totality, the defense counsel’s representation was constitutionally adequate. When measured against the foregoing standard, it is clear that the defendant received the effective assistance of counsel. We have considered the defendant’s remaining contention and find it to be without merit. Rubin, J. P., Hooper and Sullivan, JJ., concur.