                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 23, 2014                    104504
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

SAHTISE S. GREEN,
                    Appellant.
________________________________


Calendar Date:   September 8, 2014

Before:   McCarthy, J.P., Rose, Egan Jr., Devine and Clark, JJ.

                              __________


      James P. Milstein, Public Defender, Albany (Theresa M.
Suozzi of counsel), for appellant.

      P. David Soares, District Attorney, Albany (Steven M. Sharp
of counsel), for respondent.

                              __________


Devine, J.

      Appeal from a judgment of the Supreme Court (Lamont, J.),
rendered June 17, 2011 in Albany County, upon a verdict
convicting defendant of the crime of murder in the second degree.

      A group of people had assembled outside a convenience store
in the City of Albany when defendant stabbed the victim in the
neck with a knife, striking the victim's jugular vein and
ultimately causing his death. Following a jury trial, defendant
was found guilty of murder in the second degree and sentenced to
25 years to life in prison. Defendant appeals.

      The conviction was supported by legally sufficient evidence
and was not against the weight of the evidence. In conducting
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our legal sufficiency analysis, we determine whether, viewing the
evidence in a light most favorable to the People, the People
established its burden of proving each element of the charged
crime beyond a reasonable doubt (see People v Acosta, 80 NY2d
665, 672 [1993]; People v Hatchcock, 96 AD3d 1082, 1083 [2012],
lv denied 19 NY3d 997 [2012]; People v Thompson, 75 AD3d 760, 762
[2010], lvs denied 15 NY3d 893, 894, 895 [2010]; People v Rouse,
4 AD3d 553, 555 [2004], lv denied 2 NY3d 805 [2004]). Further,
in considering defendant's weight of the evidence claim, the
trial evidence is viewed in a neutral light and, if a different
outcome would not have been unreasonable, we must "'weigh the
relative probative force of conflicting testimony and the
relative strength of conflicting inferences that may be drawn
from the testimony'" (People v Bleakley, 69 NY2d 490, 495 [1987],
quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943];
accord People v Tinkler, 105 AD3d 1140, 1141 [2013], lv denied 21
NY3d 1020 [2013]; People v Thompson, 75 AD3d at 762) and accord
"great deference to the jury's credibility determinations"
(People v Mariano, 101 AD3d 1367, 1368 [2012]; see People v
Shuaib, 111 AD3d 1055, 1056 [2013]; People v Blackman, 90 AD3d
1304, 1308 [2011], lv denied 19 NY3d 971 [2012]).

      Defendant's cousin testified, on behalf of the People, that
she spoke with defendant after he had departed a bar shortly
before the stabbing and that he showed her a knife. She further
stated that defendant was looking for the victim with the intent
to kill him. Another witness averred that, as he approached the
convenience store, he greeted defendant and, thereafter, saw
defendant walk up to the victim and stab him in the neck. As
defendant retreated from the scene, the witness then overheard
him say, "I don't give a fuck" and, further, that he would "do it
again if I got to." While other prosecution witnesses did not
personally observe defendant stab the victim, they testified that
defendant was observed standing close to the victim and holding a
bloody knife. One witness testified that the victim took a knife
out of his pants pocket after he was stabbed and pursued
defendant for a brief time, at which time gun shots were fired
and defendant was struck in the right hip. Defendant took the
stand and admitted to having stabbed the victim, but he insisted
that he lunged at the victim with a knife after he observed the
victim place his hand under his shirt to touch a silver item,
                              -3-                104504

which defendant feared – but could not confirm – was a weapon.
Defendant, in support of his affirmative defense that the
stabbing was justified due to his belief that the victim was
about to apply deadly physical force against him and that
retreating therefrom was not possible (see Penal Law § 35.15 [2]
[a]), explained that the victim, who he believed was a violent
gang member, had confronted him prior to the stabbing incident
and slashed him on the arm with a knife. However, there was
evidence that defendant misrepresented the nature of his injury
after it occurred and made no mention of the victim's previous
threats to the police officers that were investigating the
incident. It was only after learning that the victim had died
that defendant exclaimed to police, "I only had a bullshit knife.
He had a gun. He flashed it. I'm scared." At trial, however,
defendant admitted that the victim did not flash a gun at him
during the confrontation. Although the jury was presented with
certain contradictory witness testimony regarding the stabbing
and the circumstances leading to such incident, the jury, as was
within its right, chose to reject defendant's justification
defense, a determination which shall remain undisturbed (see
People v Vanderhorst, 117 AD3d 1197, 1199-1200 [2014]; People v
Dale, 115 AD3d 1002, 1006 [2014]; People v Fisher, 89 AD3d 1135,
1137-1138 [2011], lv denied 18 NY3d 883 [2012]).

      Next, defendant insists that, because he was still in pain
from being shot, was deprived of Miranda warnings and was subject
to deceptive interrogation tactics by interviewing officers, the
statements that he made during the custodial police interrogation
that occurred after the stabbing incident should have been
suppressed as involuntary. We reject, at the outset, defendant's
claim that his waiver of a pretrial suppression hearing was
involuntary due to counsel's failure to fully advise him of the
significance of such decision. After defendant's counsel
notified Supreme Court that defendant was waiving his right to
Wade, Mapp and Huntley hearings, the court inquired whether
defendant had been advised that he was entitled to such
proceedings and, further, asked defendant whether he was "willing
to freely and voluntarily waive those hearings," to which
defendant responded affirmatively. No objection to the admission
of defendant's statements was made at any time during or after
the trial, and we reject defendant's claim that the admission of
                              -4-                104504

such evidence deprived him of a fair trial. Although defendant
testified that he was "dragged" from the hospital by police
officers in order to be questioned and was still in pain and
bleeding from his gun shot wound, a police officer involved in
the interview testified that defendant was brought into the
police station to provide information about the shooting upon his
release from the hospital and that, once defendant arrived at the
station, he was left to sleep for approximately three hours
before being questioned. Other evidence reveals that defendant
was given a Miranda warning well before he admitted to having
stabbed the victim, and he was permitted to exit the interview
room at any time, but consented to stay and continue the
interview. Despite defendant's assertion that his request for an
attorney was ignored by the interviewing officers, there is proof
that defendant was notified that he could request an attorney,
which evidence was not challenged at trial. Overall, nothing in
the record supports defendant's argument that his statements were
the result of deceptive or coercive police questioning, thereby
rendering them inadmissible (see People v Mercado, 113 AD3d 930,
931-932 [2014], lv denied 23 NY3d 1040 [2014]; People v Heesh, 94
AD3d 1159, 1160-1161 [2012], lv denied 19 NY3d 961 [2012]; People
v Pouliot, 64 AD3d 1043, 1045-1046 [2009], lv denied 13 NY3d 838
[2009]).

      Defendant also claims that certain cumulative errors
committed during the trial resulted in the denial of the
effective assistance of counsel. In particular, defendant
maintains that counsel failed to make proper objections or raise
meritorious defenses during trial, although he fails to specify
the exact nature of such shortcomings. Defendant's attorney,
however, made numerous objections and thoroughly cross-examined
the People's witnesses in an attempt to demonstrate that they
were incredible or biased and, further, that defendant acted in
self-defense. Moreover, to the extent that defendant points to
the allegedly uninformed waiver of his right to pretrial
suppression hearings as a basis to find that he was denied the
right to the effective assistance of counsel, such decision
appears to have been strategic in nature and "and we will not
second-guess counsel's reasoned professional determinations"
(People v Smith, 89 AD3d 1148, 1149 [2011], lv denied 19 NY3d 968
[2012]; see People v Kenyon, 108 AD3d 933, 939-940 [2013], lv
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denied 21 NY3d 1075 [2013]; People v Rodabaugh, 26 AD3d 598, 600
[2006]).

      Finally, in the absence of extraordinary circumstances or
an abuse of the sentencing court's discretion, we decline the
request to reduce defendant's statutorily permissible sentence in
the interest of justice (see People v Vanderhorst, 117 AD3d at
1201-1202; People v Fulwood, 86 AD3d 809, 811-812 [2011], lv
denied 17 NY3d 952 [2011]; People v Brown, 46 AD3d 949, 952
[2007], lv denied 10 NY3d 808 [2008]). Nor do we agree that the
imposition of the maximum prison term was an act of retribution
for declining the People's plea offer and proceeding to trial
(see People v Terry, 85 AD3d 1485, 1489 [2011], lv denied 17 NY3d
862 [2011]; People v Tannis, 36 AD3d 635, 635 [2007], lv denied 8
NY3d 927 [2007]; People v Chappelle, 14 AD3d 728, 729 [2005], lv
denied 5 NY3d 786 [2005]).

     McCarthy, J.P., Rose, Egan Jr. and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
