| People v Roperto |
| 2017 NY Slip Op 05978 |
| Decided on August 2, 2017 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on August 2, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
LEONARD B. AUSTIN
SHERI S. ROMAN
JEFFREY A. COHEN, JJ.
2015-00875
(Ind. No. 14-00588)
v
Giovanni Roperto, appellant.
Carl D. Birman, Mamaroneck, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Jennifer Spencer and Steven A. Bender of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered January 13, 2015, convicting him of assault in the first degree, assault in the second degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342, 348), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410). Upon reviewing the record here, we are satisfied that the defendant's convictions were not against the weight of the evidence.
The defendant contends that he was deprived of the effective assistance of counsel based on defense counsel's failure to request, inter alia, that the jury be charged with physical force justification in addition to deadly physical force justification. This contention is without merit because there was no reasonable view of the evidence, viewed most favorably to the defendant, to support a finding that the defendant, who stabbed the two victims with a knife, used only nondeadly physical force (see People v Lugg, 124 AD3d 679, 680; People v Taylor, 118 AD3d 1044, 1047; People v Steele, 19 AD3d 175), and "[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to make a motion or argument that has little or no chance of success'" (People v Caban, 5 NY3d 143, 152, quoting People v Stultz, 2 NY3d 277, 287). Furthermore, focusing on the "fairness of the process as a whole" (People v Benevento, 91 NY2d 708, 714) and reviewing the evidence, the law, and the circumstances of the case in totality, including the fact that defense counsel secured the defendant's acquittal on certain counts, we find that the defendant was provided with meaningful representation (see People v Baldi, 54 NY2d 137, 147).
The defendant's contention that he was deprived of a fair trial by certain comments [*2]made by the prosecutor during his opening and closing statements is largely unpreserved for appellate review and, in any event, without merit (see CPL 470.05[2]; People v Speaks, 28 NY3d 990, 992).
DILLON, J.P., AUSTIN, ROMAN and COHEN, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court