        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

174
KA 08-02511
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

DONNELL M. BROWN, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DONNELL M. BROWN, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered December 5, 2008. The judgment
convicted defendant, upon a jury verdict, of assault in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of assault in the second degree (Penal Law §
120.05 [2]), arising from a stabbing incident. Following the
stabbing, the victim’s roommate called 911 to report the incident.
Defendant contends that he was denied effective assistance of counsel
when defense counsel stipulated to the admission of the 911 recording
in evidence at trial because it contained inadmissible hearsay that
bolstered the testimony of the victim and prejudiced his defense of
the case. Although we agree with defendant that defense counsel erred
in stipulating to the admission of inadmissible hearsay, we reject
defendant’s contention that this single error was sufficiently
egregious as to deprive him of a fair trial (see People v Wells, 101
AD3d 1250, 1255; People v Singh, 16 AD3d 974, 978, lv denied 5 NY3d
769; People v Miller, 291 AD2d 929, 929, lv denied 98 NY2d 712).
Indeed, we note that the victim, who had known defendant prior to the
incident, unequivocally identified defendant as the assailant at
trial.

     We reject defendant’s further   contention that Supreme Court erred
in denying his motion to set aside   the verdict on the ground of newly
discovered evidence. The evidence    in question, i.e., that the victim
used crack cocaine on the night of   the incident and had accused
                                 -2-                           174
                                                         KA 08-02511

defendant of having a relationship with the victim’s girlfriend, was
not in fact newly discovered inasmuch as defendant allegedly learned
of that evidence on the evening before summations and thus had an
opportunity to use it before the case was submitted to the jury (see
CPL 330.30 [3]; see generally People v White, 272 AD2d 872, 872, lv
denied 95 NY2d 859). In any event, the evidence merely impeaches or
contradicts the testimony of the victim, and defendant failed to show
that its admission would have created the probability of a more
favorable verdict (see CPL 330.30 [3]; People v Salemi, 309 NY 208,
215-216, cert denied 350 US 950).

     We have reviewed defendant’s contention in his pro se
supplemental brief and conclude that it is without merit. It is well
settled that defense counsel is not ineffective for failing to bring a
motion that would have had little or no chance of success (see
generally People v Caban, 5 NY3d 143, 152; People v Medaro, 277 AD2d
252, 253, lv denied 96 NY2d 803).




Entered:   March 15, 2013                       Frances E. Cafarell
                                                Clerk of the Court
