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

695
KA 11-00669
PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NIXON ELIAN, DEFENDANT-APPELLANT.


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

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (David
D. Egan, J.), rendered January 6, 2011. The judgment convicted
defendant, upon a jury verdict, of attempted aggravated murder (two
counts), assault in the first degree (two counts), attempted robbery
in the first degree, burglary in the first degree, criminal possession
of a weapon in the second degree, assault in the second degree and
criminal possession of stolen property in the fourth 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, inter alia, two counts of attempted aggravated
murder (Penal Law §§ 110.00, 125.26 [1] [a] [i]; [b]). We reject
defendant’s contention that he was denied effective assistance of
counsel based on defense counsel’s failure to request that Supreme
Court charge attempted assault in the second degree (§§ 110.00, 120.05
[1]) as a lesser included offense of those two counts of the
indictment. “It is well settled that ‘[a] defendant is not denied
effective assistance of trial counsel [where defense] counsel does not
make . . . a[n] argument that has little or no chance of success’ ”
(People v March, 89 AD3d 1496, 1497, lv denied 18 NY3d 926, quoting
People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702). Viewing
the evidence in the light most favorable to defendant (see People v
Martin, 59 NY2d 704, 705), we conclude that there is no reasonable
view thereof to support a finding that defendant committed the lesser
offense but not the greater (see generally People v Glover, 57 NY2d
61, 63). We reject defendant’s further contention that he was denied
effective assistance of counsel based on defense counsel’s failure to
object to comments made by the prosecutor in his opening statement and
on summation (see People v Cox, 21 AD3d 1361, 1364, lv denied 6 NY3d
753).
                                 -2-                           695
                                                         KA 11-00669

     Defendant failed to preserve for our review his further
contention that he was deprived of a fair trial by the admission in
evidence of defendant’s recorded statement in which he referenced an
uncharged act of domestic violence. After defendant objected on the
basis of a Molineux violation, the court gave curative instructions to
the jury. Following those instructions, defense counsel neither
objected further nor requested a mistrial, and thus, “ ‘[u]nder these
circumstances, the curative instructions must be deemed to have
corrected the error to the defendant’s satisfaction’ ” (People v Lane,
106 AD3d 1478, 1480-1481, lv denied 21 NY3d 1043, quoting People v
Heide, 84 NY2d 943, 944). We decline to exercise our power to review
defendant’s contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]).




Entered:   June 19, 2015                       Frances E. Cafarell
                                               Clerk of the Court
