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

87
KA 12-01049
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHRISTIAN M. PATTERSON, DEFENDANT-APPELLANT.


CHRISTOPHER JUDE PELLI, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered April 11, 2012. The judgment convicted
defendant, upon a jury verdict, of aggravated murder, attempted
aggravated murder (two counts), criminal possession of a weapon in the
fourth degree and harassment in the second degree.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of, inter alia, one count of aggravated murder (Penal Law §
125.26 [1] [a] [i]) and two counts of attempted aggravated murder (§§
110.00, 125.26 [1] [a] [i]), defendant contends that he was denied
effective assistance of counsel based upon several alleged failures of
trial counsel. We reject defendant’s contention.

     This conviction arose from an incident spread over two dates, in
which defendant shot and killed a deputy sheriff (hereafter, deputy).
The evidence at trial, including defendant’s trial testimony,
establishes that the deputy responded after defendant’s neighbors
called 911 and reported a domestic dispute regarding defendant and his
girlfriend. The neighbors also told the 911 operator that defendant
might be armed. The evidence, again including defendant’s testimony,
establishes that the deputy parked his vehicle in defendant’s driveway
and began to walk toward defendant’s house. Before the deputy said or
did anything, defendant picked up a pump action shotgun and placed his
finger on the trigger. A six-hour stalemate ensued, involving the
deputy, defendant, and numerous other members of several law
enforcement agencies. Despite numerous requests from the deputy and
other law enforcement personnel at the scene to put down the shotgun,
defendant never removed his finger from the trigger. The incident
came to a climax when defendant moved to a less-visible part of his
garage and began to put on a jacket. He released the trigger when he
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                                                         KA 12-01049

began to put his arm in the sleeve of the jacket. Two law enforcement
agents quickly fired non-lethal projectiles at defendant, which
knocked him down and caused him to drop the shotgun. The deputy
rushed into the garage with a taser, in a further attempt to subdue
defendant with non-lethal force. Before the deputy reached him,
however, defendant picked up the shotgun and fired a slug that struck
the deputy in the hand and neck, causing his death. The remaining law
enforcement officers shot defendant several times, which resulted in
non-lethal injuries. As they were shooting at him, he worked the pump
action of the shotgun two more times, firing the weapon at a law
enforcement agent each time.

     The matter proceeded to trial, where the jury rejected the
defense that defendant was under the influence of an extreme emotional
disturbance.

     Defendant contends that his attorney was ineffective in failing
to move to suppress evidence unlawfully seized from him by the law
enforcement personnel at the scene in the absence of a warrant or
probable cause to arrest him. We reject that contention. It is well
settled that “a showing that [defense] counsel failed to make a
particular pretrial motion generally does not, by itself, establish
ineffective assistance of counsel” (People v Rivera, 71 NY2d 705, 709;
see People v Biro, 85 AD3d 1570, 1571; see also People v Webster, 56
AD3d 1242, 1242-1243, lv denied 11 NY3d 931), and it is equally well
settled that, in order “[t]o prevail on a claim of ineffective
assistance of counsel, it is incumbent on defendant to demonstrate the
absence of strategic or other legitimate explanations for counsel’s
failure to request a particular hearing. Absent such a showing, it
will be presumed that counsel acted in a competent manner and
exercised professional judgment in not pursuing a hearing” (Rivera, 71
NY2d at 709). Furthermore, “[t]here can be no denial of effective
assistance of . . . counsel arising from [defense] 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, rearg denied 3 NY3d 702; see People v Watson, 90 AD3d
1666, 1667, lv denied 19 NY3d 868; People v McGee, 87 AD3d 1400, 1403,
affd 20 NY3d 513). Here, defendant failed to demonstrate the absence
of legitimate explanations for defense counsel’s failure to make a
suppression motion, or that the “ ‘motion, if made, would have been
successful and that defense counsel’s failure to make that motion
deprived him of meaningful representation’ ” (People v Bassett, 55
AD3d 1434, 1437-1438, lv denied 11 NY3d 922; see People v Bedell, 114
AD3d 1153, ___; cf. People v Carnevale, 101 AD3d 1375, 1378-1381).

     Defendant’s further contention that his attorney failed to
provide effective assistance of counsel by failing to pursue a
justification defense and to request a justification charge is also
without merit. Contrary to defendant’s contention, there is no
reasonable view of the evidence that would permit defense counsel to
pursue such a defense, and thus such a charge would not be appropriate
(see generally Caban, 5 NY3d at 152). With respect to defendant’s
contention that he was entitled to use deadly force to prevent his
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                                                         KA 12-01049

arrest, it is well settled that “defendant was not entitled to use any
physical force to resist an arrest by a police officer who reasonably
appeared to be [such an officer]” (People v Degondea, 269 AD2d 243,
245, lv denied 95 NY2d 834; see People v Douglas, 160 AD2d 1015, 1016,
lv denied 76 NY2d 855), much less deadly physical force. There is no
reasonable view of the evidence supporting defendant’s further
contention that the deputy and the other law enforcement agents were
committing a burglary that would justify defendant’s use of deadly
force pursuant to Penal Law § 35.20 (3). Similarly, his contention
that he was justified in using deadly physical force pursuant to
section 35.15 is without merit because “the justification defense
would not be available [where, as here,] defendant was ‘the initial
aggressor’ ” (People v Watson, 20 NY3d 1018, 1020, quoting § 35.15 [1]
[b]).

     We have reviewed defendant’s further contentions regarding
defense counsel’s other alleged shortcomings and, viewing the
evidence, the law and the circumstances of this case in totality and
as of the time of representation, we conclude that defendant received
effective assistance of counsel (see generally People v Baldi, 54 NY2d
137, 147).

     We reject defendant’s further contention that the court erred in
failing to instruct the jury, sua sponte, on the defense of
justification. Even assuming, arguendo, that such an instruction was
supported by the evidence, we conclude that the “court did not err in
refraining from delivering such a charge sua sponte, as this would
have improperly interfered with defense counsel’s strategy” (People v
Poston, 95 AD3d 729, 730, lv denied 19 NY3d 1104).

     Finally, viewing the evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).




Entered:   March 21, 2014                       Frances E. Cafarell
                                                Clerk of the Court
