People v. Perry, 148 A.D.3d 1224 (N.Y. App. Div. 2017). · Go Syfert
People v. Perry, 148 A.D.3d 1224 (N.Y. App. Div. 2017). Cases Citing This Book View Copy Cite
17 citation events (17 in the last 25 years) across 1 distinct court.
Strongest positive: People v. Smith (nyappdiv, 2025-04-17)
Top citers, strongest first. 13 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Smith (2×)
N.Y. App. Div. · 2025 · confidence medium
In doing so, "counsel's efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective" ( People v Perry , 148 AD3d 1224, 1225 [3d Dept 2017] [internal quotation marks and citation omitted]), and "counsel will not be found to be ineffective on the basis that he or she failed to make an argument or motion that has little or no chance of success" ( People v Lorenz , 211 AD3d 1109, 1113 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 39 NY3d 1112 [2023]).
discussed Cited as authority (rule) People v. Johnson
N.Y. App. Div. · 2024 · confidence medium
Finally, while defendant now second-guesses counsel's strategy of eliciting testimony that defendant engaged in sexual conduct with the victims "all the time," it is evident that doing so was intended to cast doubt on the credibility of the victims' accounts and create reasonable doubt as to whether their allegations were fabricated ( see People v Burton , 215 AD3d 1054 , 1062-1063 [3d Dept 2023], lv denied 40 NY3d 927 [2023]; People v Perry , 148 AD3d 1224, 1226 [3d Dept 2017]).
discussed Cited as authority (rule) People v. Johnson
N.Y. App. Div. · 2024 · confidence medium
Finally, while defendant now second-guesses counsel's strategy of eliciting testimony that defendant engaged in sexual conduct with the victims "all the time," it is evident that doing so was intended to cast doubt on the credibility of the victims' accounts and create reasonable doubt as to whether their allegations were fabricated ( see People v Burton , 215 AD3d 1054 , 1062-1063 [3d Dept 2023], lv denied 40 NY3d 927 [2023]; People v Perry , 148 AD3d 1224, 1226 [3d Dept 2017]).
discussed Cited as authority (rule) People v. Cole
N.Y. App. Div. · 2023 · confidence medium
We cannot say that this defense and how it was presented "was unreasonable in light of the evidence and circumstances or completely devoid of merit," and "counsel's efforts should not be second-guessed [*3]with the clarity of hindsight to determine how the defense might have been more effective" ( People v Perry , 148 AD3d 1224, 1225 [3d Dept 2017] [internal quotation marks and citations omitted]).
discussed Cited as authority (rule) People v. Cole
N.Y. App. Div. · 2023 · confidence medium
We cannot say that this defense and how it was presented "was unreasonable in light of the evidence and circumstances or completely devoid of merit," and "counsel's efforts should not be second-guessed [*3]with the clarity of hindsight to determine how the defense might have been more effective" ( People v Perry , 148 AD3d 1224, 1225 [3d Dept 2017] [internal quotation marks and citations omitted]).
discussed Cited as authority (rule) People v. Stratton
N.Y. App. Div. · 2022 · confidence medium
In any event, defendant received a favorable plea agreement, and defense counsel's decision not to subpoena certain cell phone records cannot be said to have been without strategy ( see People v Benevento , 91 NY2d 708, 713 [1998]; People v Pace , 192 AD3d 1274, 1275 [2021], lv denied 37 NY3d 973 [2021]; People v Perry , 148 AD3d 1224, 1225-1226 [2017]).
discussed Cited as authority (rule) People v. Green
N.Y. App. Div. · 2021 · confidence medium
The foregoing complaints accordingly do not reflect ineffective assistance in isolation and, even when taken together, are rare missteps in what the record as a whole confirms was an adroit performance by trial counsel, marked by appropriate pretrial motion practice and a trial defense so skillful that the first trial ended with a deadlocked jury on the most serious charges against defendant ( see People v Mesko , 150 AD3d 1412, 1414-1415 [2017], lv denied 29 NY3d 1131 [2017]; People v Perry , 148 AD3d 1224, 1225-1226 [2017]).
discussed Cited as authority (rule) People v. Banks
N.Y. App. Div. · 2020 · confidence medium
Moreover, we cannot fault defense counsel for failing to either raise a meritless objection to those rehabilitative efforts ( see People v Allah , 57 AD3d 1115, 1118 [2008], lv denied 12 NY3d 780 [2009]) or request a limiting instruction that was inappropriate, and potentially counterproductive, in the absence of testimony regarding actual threats ( see People v Wilson , 123 AD3d 626, 626 [2014], lv denied 25 NY3d 1210 [2015]; People v Howard , 7 AD3d 314, 314 [2004], lv denied 3 NY3d 675 [2004]; compare People v Randolph , 18 AD3d 1013, 1015-1016 [2005]). [FN2] There was accordingly nothing i…
discussed Cited as authority (rule) People v. Cayea
N.Y. App. Div. · 2018 · confidence medium
Under the circumstances and evidence presented, this was a legitimate trial strategy and, therefore, defense counsel's performance does not fall to the level of ineffective assistance of counsel ( see People v Perry , 148 AD3d 1224, 1225 [2017]).
discussed Cited as authority (rule) People v. Young
N.Y. App. Div. · 2018 · confidence medium
Rather, when we review the record as a whole, we find that trial counsel had a "reasonable and legitimate strategy under the circumstances and evidence presented," and we therefore conclude that defendant has not established that he received ineffective assistance ( People v Perry , 148 AD3d 1224, 1224-1225 [2017] [internal quotation marks and citation omitted]; see People v Caban , 5 NY3d 143, 152 [2005]).
discussed Cited as authority (rule) People v. Crippen
N.Y. App. Div. · 2017 · confidence medium
Moreover, when we review the record in its totality, we find that defendant received meaningful representation (see People v Kalina, 149 AD3d 1264, 1267 [2017], lv denied 29 NY3d 1092 [2017]; People v Perry, 148 AD3d 1224, 1224-1226 [2017]).
discussed Cited as authority (rule) People v. Place
N.Y. App. Div. · 2017 · confidence medium
Where, as here, the record discloses that counsel vigorously cross-examined witnesses, attacked the veracity of the victim’s credibility, made opening and closing statements and presented a witness on defendant’s behalf, we cannot conclude that defendant received the ineffective assistance of counsel (see People v Perry, 148 AD3d 1224, 1225-1226 [2017]; People v Ackerman, 141 AD3d 948, 950-951 [2016], lv denied 28 NY3d 1181 [2017]; People v Van Demps, 118 AD3d 1146, 1148 [2014], lv denied 23 NY3d 1061 [2014]). *981 We reject defendant’s claim that the imposed sentence was harsh and exces…
discussed Cited as authority (rule) People v. Wolf
N.Y. App. Div. · 2017 · confidence medium
In sum, although our review of the totality of the record may reveal that errors were made, it is not apparent that any errors were prejudicial, and we find that defendant received meaningful representation (see People v Perry, 148 AD3d 1224, 1226 [2017]; People v Fiorino, 130 AD3d 1376, 1381 [2015], lv denied 26 NY3d 1087 [2015]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Andre T. Perry
Appellate Division of the Supreme Court of the State of New York.
Mar 2, 2017.
148 A.D.3d 1224
Aarons, Clark, Devine, Egan, Garry.
Cited by 13 opinions  |  Published
Clark, J.

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered June 23, 2014, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the fifth degree and falsely reporting an incident in the third degree.

On June 23, 2013, defendant was arrested for falsely reporting an incident and, during a search incident to his arrest, was found to be in possession of cocaine. Defendant was thereafter indicted on charges of criminal possession of a controlled substance in the fifth degree and falsely reporting an incident in the third degree. Following a jury trial, at which defendant testified, defendant was found guilty as charged and sentenced to an aggregate prison term of three years. Defendant now appeals, solely arguing that he received the ineffective assistance of counsel.

A defendant’s right to the effective assistance of counsel is guaranteed by both the US and NY Constitutions (see US Const 6th Amend; NY Const, art I, § 6). To succeed on a claim of ineffective assistance of counsel under the US Constitution, a defendant must demonstrate that the performance of his or her trial counsel “fell below an objective standard of reasonableness . . . under prevailing professional norms” and that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” (Strickland v Washington, 466 US 668, 688, 694 [1984]; see People v Harris, 26 NY3d 321, 328 [2015]; People v Hernandez, 22 NY3d 972, 974-975 [2013], cert denied 572 US —, 134 S Ct 1900 [2014]). By comparison, to prevail on a claim of ineffective assistance of counsel under the NY Constitution, a defendant must establish that he or she was not provided meaningful representation and that there is an “absence of strategic or other legitimate explanations” for counsel’s allegedly deficient performance (People v Rivera, 71 NY2d 705, 709 [1988]; see People v Caban, 5 NY3d 143, 152 [2005]; People v Benevento, 91 NY2d 708, 712 [1998]). If “the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to[*1225] the level of ineffective assistance” (People v Benevento, 91 NY2d at 712-713; see People v Berroa, 99 NY2d 134, 138 [2002]).

Here, with respect to the charge of falsely reporting an incident, the People sought to prove that defendant, while acting in concert with another person, gratuitously reported to the arresting police officer that he had been a passenger in a vehicle driven by his purported accomplice and that the vehicle had been struck in a hit-and-run accident. To that end, the People relied, in large part, on hearsay statements made by defendant’s purported accomplice to the arresting officer. While defendant did not challenge the admissibility of these hearsay statements, as one might expect, it appears that his defense strategy was to attribute the false report solely to his purported accomplice and to deny that he participated or aided in any way. Defense counsel’s opening and closing statements, as well as his questions during cross-examinations and direct examinations, furthered this apparent strategy. As to defendant’s defense of the possession charge, made more difficult by the drugs having been found on his person, defendant appeared to have employed a strategy of contesting the credibility of the arresting officer so as to create reasonable doubt (see People v Johnson, 303 AD2d 830, 835 [2003], lvs denied 99 NY2d 655 [2003], 100 NY2d 583 [2003]). However, defendant took the stand* and, although he countered portions of the arresting officer’s account of events, he ultimately admitted to possessing the drugs. Thus, while the strategy advanced by defense counsel may not have been the best available, we cannot say that it was unreasonable in light of the evidence and circumstances or completely devoid of merit (see People v Benevento, 91 NY2d at 712; People v Satterfield, 66 NY2d 796, 799 [1985]; People v Baldi, 54 NY2d 137, 151-152 [1981]; People v Manchester, 123 AD3d 1285, 1289 [2014], lv denied 26 NY3d 931 [2015]). As often recognized, “counsel’s efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective” (People v Benevento, 91 NY2d at 712; accord People v Thomas, 105 AD3d 1068, 1071 [2013], lv denied 21 NY3d 1010 [2013]; see People v Rotger, 129 AD3d 1330, 1331 [2015], lvs denied 26 NY3d 1011 [2015], 27 NY3d 1005 [2016]).

The record reveals that defense counsel engaged in appropri[*1226] ate pretrial motion practice, sought discovery materials from the District Attorney’s office, made coherent opening and closing statements aimed at furthering a particular defense strategy and contested the credibility of the People’s witnesses during cross-examinations. Despite the fact that defense counsel did not make a single objection at trial, seek a curative instruction in response to County Court’s statements regarding a defense witness or request any particular jury charge, we find that defense counsel’s representation, viewed in its totality, meets the threshold of meaningful (see People v Baldi, 54 NY2d at 146-147; People v Ryan, 46 AD3d 1125, 1126-1127 [2007], lv denied 10 NY3d 939 [2008]). Accordingly, defendant’s claims of ineffective assistance of counsel fail under both the NY and US Constitutions (see generally People v Benevento, 91 NY2d at 712-713; Strickland v Washington, 466 US at 687-688).

Garry, J.P., Egan Jr., Devine and Aarons, JJ., concur.

Ordered that the judgment is affirmed.

The record does not reveal the circumstances under which defendant decided to testify or the circumstances that prompted defense counsel to state on the record, outside of the presence of the jury, that defendant was not “happy” with him. Issues that are outside the record must be raised in a CPL article 440 motion, rather than on direct appeal (see People v Brown, 45 NY2d 852, 853-854 [1978]; People v Surowka, 103 AD3d 985, 986 [2013]).