[User]
Create a takeaway summary for the following court decision, focusing on the topic of Motion Practice & Pre-Trial Hearings and the subtopic of Sirois hearing. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Kellum 2024 NY Slip Op 06629 [233 AD3d 1374] December 26, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] The People of the State of New York, Respondent, v Darnell Kellum, Appellant. Danielle Neroni Reilly, Albany, for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Daniel J. Young of counsel), for respondent. Pritzker, J. Appeals (1) from a judgment of the Supreme Court (Peter A. Lynch, J.), rendered February 5, 2020, in Albany County, upon a verdict convicting defendant of the crimes of burglary in the second degree (two counts), aggravated criminal contempt (two counts), criminal contempt in the second degree (three counts), assault in the second degree, strangulation in the second degree and tampering with a witness in the fourth degree, and (2) by permission, from an order of said court, entered November 1, 2023, in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing. Defendant was charged in an 11-count indictment with crimes related to the assault of the victim as well as multiple violations of an order of protection, issued on the victim's behalf, on various dates between December 2018 and February 2019. Specifically, defendant was charged with two counts of burglary in the second degree (counts 1 and 4), two counts of assault in the second degree (counts 5 and 6), strangulation in the second degree (count 7), two counts of aggravated criminal contempt (counts 2 and 8), three counts of criminal contempt in the second degree (counts 3, 9 and 10) and tampering with a witness in the fourth degree (count 11). A six-day jury trial was held, and, upon its conclusion, defendant was convicted of two counts of burglary in the second degree (counts 1 and 4), one count of assault in the second degree (count 5), strangulation in the second degree (count 7), two counts of aggravated criminal contempt (counts 2 and 8), three counts of criminal contempt in the second degree (counts 3, 9 and 10) and tampering with a witness in the fourth degree (count 11). Defendant was thereafter sentenced, as a second violent felony offender, to a prison term of 15 years, to be followed by five years of postrelease supervision, for the conviction of count 1 and a consecutive prison term of seven years, to be followed by five years of postrelease supervision, for the conviction of count 5. On the remaining counts, he was sentenced to equal or lesser concurrent terms of incarceration. Subsequently, defendant moved pursuant to CPL 440.10 to have the judgment of conviction vacated, alleging ineffective assistance of counsel and a Brady violation. Supreme Court denied the motion without a hearing, finding, among other things, that the alleged Brady violation, although genuine, was of little or no significance given the overwhelming evidence of defendant's guilt. Defendant appeals from the judgment of conviction and, by permission, from the denial of his CPL article 440 motion. Defendant argues that the verdict as to the counts charging him with varying degrees of criminal contempt (counts 2, 3, 8, 9 and 10) is not supported by legally sufficient evidence as the People failed to prove that there was a valid order of protection in effect at the time of the crimes, as the order of protection admitted into evidence had an inaccurate [*2] date of birth. At trial, the People admitted into evidence, as People's exhibit 1, a certified copy of a temporary order of protection issued by Troy City Court on April 16, 2018, for the protection of the victim. This order of protection has an expiration date of April 15, 2019. The order indicates that defendant was to stay away from the victim, refrain from any communication with her and refrain from, among other things, assault, strangulation and criminal obstruction of breathing or blood circulation. On the order of protection, the boxes are checked indicating that defendant was advised in court of the issuance and contents of the order and that the order was personally served on defendant in court, as confirmed by defendant's signature. The events at issue in this case occurred in December 2018, January 2019 and February 2019. At trial, the People called Viviane Guicheney, a supervisory clerical assistant for Troy City Court, who testified that she recognized the order of protection, that she had created it, that she recognized defendant as the subject of the order because she was in court when the order was issued and that the order could not have been generated unless defendant was in court on the relevant date. Additionally, Guicheney testified that the order contained a typographical error as to defendant's date of birth and that defendant had been advised of the order's contents by the judge who issued it, thereby indicating that defendant must have known of the order's contents when he signed it. Viewing the foregoing in a light most favorable to the People as we must ( see People v Danielson , 9 NY3d 342 , 349 [2007]), "there is a valid line of reasoning and permissible inferences through which a rational jury could have found . . . beyond a reasonable doubt" that there was a valid order of protection in effect at the time of the crimes ( People v Everett , 231 AD3d 1296 , 1301 [3d Dept 2024]). [FN*] We are unpersuaded by defendant's contention that the indictment must be dismissed because he appeared before the grand jury in prison garb and shackles. Although we do agree that the People erred in failing to articulate the requisite reasonable basis for the restraints, "reversal is not required since the prosecutor's cautionary instructions to the grand jury were sufficient to dispel any potential prejudice" ( People v Muniz , 93 AD3d 871 , 872 [3d Dept 2012], lv denied 19 NY3d 965 [2012]; see People v Shabazz , 211 AD3d 1093 , 1100 [3d Dept 2022], lv denied 39 NY3d 1113 [2023]). Defendant next argues that Supreme Court erred when it permitted the victim's grand jury testimony to be read at trial. "As a general rule, the [g]rand [j]ury testimony of an unavailable witness is inadmissible as evidence-in-chief . . . [unless] the People establish by clear and convincing evidence that the witness's unavailability was procured by misconduct on the part of the defendant" ( People v Dubarry , 25 NY3d 161 , 174 [2015] [internal quotation marks and citations omitted [*3] ]; see People v Johnson , 250 AD2d 922, 924-925 [3d Dept 1998], affd 93 NY2d 254 [1999]; see also US Const, 6th Amend; NY Const, art I, § 6). Indeed, "[w]henever the People allege specific facts which demonstrate a distinct possibility that a criminal defendant has engaged in witness tampering, the court must grant a Sirois hearing to test the validity of that claim. A Sirois hearing is no mere formality. The Sirois hearing plays the valuable role of sentry, admitting statements not subject to cross-examination only where the requisite link between the defendant's misconduct and the witness's silence has been established" ( People v Robinson , 216 AD3d 1252 , 1253 [3d Dept 2023] [internal quotation marks, brackets and citations omitted]; see People v Smart , 23 NY3d 213 , 220-221 [2014]; People v Bryant , 200 AD3d 1483 , 1490-1491 [3d Dept 2021], appeal dismissed 38 NY3d 1158 [2022]). At the Sirois hearing, an officer with the Colonie Police Department identified defendant and testified that he had observed the injured victim when she was being treated at a local hospital the day of the February 2019 incident. While there, the victim had received several text messages, of which the officer had taken photographs, and which appeared to be from defendant. Many of these text messages threatened the victim with severe harm. Additionally, two recorded calls from the jail where defendant was being held after his arrest were admitted into evidence. In these calls, which were placed days after his arrest but before he was indicted, defendant can be heard talking to the victim and, among other things, instructing her multiple times to go to the District Attorney's office and tell them that he did not beat her, to get the charges dropped. While attempting to get the victim to cooperate with his request, defendant repeatedly assured her of his love, that he was going to change and that he did not mean to hurt her. Defendant specifically referred to a court appearance he had the evening of the call, telling the victim to recant her statement before that court appearance. Testimony from Amanda Kyle-Sprague, the bureau chief of the crime victims unit in the Albany County District Attorney's office, indicated that she had received a telephone call from the victim months after she testified before the grand jury, wherein the victim indicated that defendant had threatened to kill her if charges against him were not dropped. Kyle-Sprague stated that the victim was very fearful, that she felt that making a police report would further antagonize defendant and that unless Kyle-Sprague could promise to keep defendant incarcerated, which she could not do, the victim would not participate in the case against him. Additionally, Kyle-Sprague indicated that she believed the victim had moved from New York shortly after her conversation and that the victim was unwilling to testify at trial because, for the first time in her life, she felt safe. Given the foregoing, we find that "[t] [*4] he evidence presented at the Sirois hearing, and inferences that logically flow therefrom, were sufficient to support [Supreme Court's] determination, under the clear and convincing evidence standard, that . . . defendant's misconduct caused the [victim] to be unavailable for purposes of testifying at trial" ( People v Zafor , 161 AD3d 1017 , 1018 [2d Dept 2018] [citation omitted], lv denied 31 NY3d 1155 [2018]; see People v Nelson , 156 AD3d 1112 , 1117-1118 [3d Dept 2017], lv denied 31 NY3d 1151 [2018]; People v Brown , 308 AD2d 379, 379 [1st Dept 2003], lv denied 1 NY3d 595 [2004]). Moreover, we find unpersuasive defendant's contention that, for a witness to be unavailable, the People must seek, and the witness must ignore, a material witness order ( see generally People v Shelly , 172 AD3d 1245 , 1246 [2d Dept 2019], lv denied 34 NY3d 954 [2019]; People v Encarnacion , 87 AD3d 81 , 88 [1st Dept 2011], lv denied 17 NY3d 952 [2011]; People v Delarosa , 218 AD2d 667, 668 [2d Dept 1995]). Thus, Supreme Court properly granted the People's motion to read the victim's grand jury testimony at trial. Defendant's assertion that Supreme Court erred when it refused to allow him, mid-trial, to proceed pro se despite his attorney's unwillingness to pursue lines of questioning defendant wanted counsel to press is unpreserved given that defendant did not request to proceed pro se ( see generally People v Cabrera , 41 NY3d 35 , 42 [2023]). Similarly, to the extent defendant's complaints about counsel's failings could be understood as seeking substitute counsel, no specific factual allegations or serious complaints regarding defense counsel were made that would have obligated the court to further inquire into the merit of defendant's complaints ( see People v Porto , 16 NY3d 93 , 99-100 [2010]). Defendant's final argument on direct appeal challenges his sentence as harsh and excessive. To the extent defendant is arguing that he was punished for exercising his right to a jury trial given that the sentence imposed is longer than that offered pretrial, this argument is not preserved given that defendant failed to raise it at sentencing ( see People v Gentry , 218 AD3d 919 , 925 [3d Dept 2023], lv denied 40 NY3d 1012 [2023]; People v Houze , 177 AD3d 1184 , 1189 [3d Dept 2019], lv denied 34 NY3d 1159 [2020]). We have reviewed the sentencing minutes and find that defendant's legal sentence is neither harsh nor severe, as his actions before, during and after trial indicated little remorse, he persistently lied to the court, failed to take responsibility for his actions and repeatedly attempted to manipulate the witness, the court and the legal process. Additionally, we take note of defendant's extensive criminal history. As such, we discern no basis upon which to disturb the imposed sentence ( see People v Kilgore , 218 AD3d 1054 , 1058 [3d Dept 2023], lv denied 40 NY3d 1081 [2023]; People v Oliveras , 203 AD3d 1233 , 1239-1240 [3d Dept 2022], lv denied 38 NY3d 1073 [2022]). We have [*5] reviewed defendant's remaining arguments raised on his direct appeal, including the denial of his Brady claim raised by way of a CPL 330.30 motion, and find them unavailing. We now turn to defendant's contentions regarding the denial of his CPL 440.10 motion without a hearing. "It is well settled that a court may deny a CPL 440.10 motion without conducting a hearing if the motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts" ( People v Dogan , 37 NY3d 1007 , 1007-1008 [2021] [internal quotation marks, brackets and citation omitted]; see People v Santana , 179 AD3d 1299 , 1303 [3d Dept 2020], lv denied 35 NY3d 973 [2020]). Further, "a court may deny a vacatur motion without a hearing if it is based on the defendant's self-serving claims that are contradicted by the record or unsupported by any other evidence" or if the motion fails to allege any basis for the motion ( People v Quinn , 210 AD3d 1284 , 1292 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 39 NY3d 1079 [2023]; see People v Ferrer , 224 AD3d 1092 , 1096 [3d Dept 2024], lv denied 41 NY3d 1018 [2024]). Indeed, "[a] hearing is only required if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief" ( People v Gilmore , 200 AD3d 1184 , 1193 [3d Dept 2021] [internal quotation marks, brackets and citations omitted], lv denied 38 NY3d 927 [2022]; see People v Ferrer , 224 AD3d at 1096). We turn first to defendant's argument regarding an alleged Brady violation due to the People's failure to disclose the disciplinary records of Frank Peris, the police officer who pulled over the vehicle in which the victim and defendant were found together, in violation of the order of protection, in January 2019. "It is axiomatic that the People have an obligation under Brady to disclose evidence and information in their possession that is both material and favorable to the defense. To establish a Brady violation, a defendant must demonstrate that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material" ( People v Wideman , 192 AD3d 1384 , 1387 [3d Dept 2021] [internal quotation marks, brackets and citations omitted], affd 38 NY3d 1067 [2022]). Whether undisclosed evidence is material under Brady 's third prong turns on "whether there is a reasonable possibility that the verdict would have been different if the evidence had been disclosed" ( People v Rong He , 34 NY3d 956 , 959 [2019] [internal quotation marks, emphasis and citations omitted]; see People v Slivienski , 204 AD3d 1228 , 1240 [3d Dept 2022], lv denied 38 NY3d 1136 [2022]). Approximately one month after the jury trial, the People sent a letter to defendant's trial counsel informing [*6] him that, a day prior, they learned of two disciplinary actions in Peris' personnel file. Specifically, the People provided defendant with information that Peris was the subject of two disciplinary actions, one in July 2012 and another in January 2019. In both incidents, Peris had acted wrongfully by using unnecessary force when arresting individuals and, in the first instance, had deceptively tried to cover up his wrongful actions. As Supreme Court properly found, the failure to disclose these records was clearly a violation of the first prong of Brady , as they are impeaching in nature ( see People v Slivienski , 204 AD3d at 1239). However, defendant failed to establish the materiality element. Indeed, Peris' testimony was only relative to count four of the indictment, charging defendant with criminal contempt in the second degree relative to the January 2019 traffic stop. The victim, in her grand jury testimony, admitted to having been in the vehicle with defendant on that day. Thus, even if testimony about Peris' prior disciplinary actions had been elicited, "there is no reasonable possibility that disclosure of the evidence would have changed the result of the proceeding" ( People v Slivienski , 204 AD3d at 1240 [internal quotation marks, brackets and citations omitted]; see People v Rong He , 34 NY3d at 959). Accordingly, Supreme Court did not abuse its discretion by denying this portion of defendant's CPL 440.10 motion without a hearing ( see People v Dogan , 37 NY3d at 1007). We now turn to defendant's assertion in his CPL 440.10 motion, that he did not receive the effective assistance of counsel. Specifically, defendant contends that he received ineffective assistance of counsel because, prior to being presented to the grand jury in prison garb and shackles, he had not met with an attorney, knew nothing about what was happening at the grand jury proceeding and offered testimony at the grand jury proceedings without counsel present. Even so, defendant's attorney made no objections on any of these points nor was a motion ever made to dismiss the indictment in light of the People's prejudicial conduct before the grand jury. Defendant further maintains that counsel was ineffective by failing to investigate whether the alleged protective order was operative at the time of defendant's purported violation. Additionally, defendant contends that he was denied effective counsel because his attorney refused to take defendant's suggestions seriously, which effectively denied him his right to participate in his own defense. "In New York, the standard for effective assistance is meaningful representation by counsel. Our standard is more protective than the Federal standard because even in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a defendant is deprived of a fair trial" ( People v Debellis , 40 NY3d 431 , 436 [2023]). "The meaningful representation standard requires an assessment of [*7] the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation. Counsel's performance should be objectively evaluated to determine whether it was consistent with strategic decisions of a reasonably competent attorney" ( People v Watkins , — NY3d &mdash, &mdash, 2024 NY Slip Op 02842, *2 [2024] [internal quotation marks and citations omitted]; see People v Calafell , 211 AD3d 1114 , 1120 [3d Dept 2022], lv denied 39 NY3d 1077 [2023]). Here, Supreme Court did not abuse its discretion in denying defendant's CPL article 440 motion in its entirety, indicating that it found defendant's claims relating to ineffective assistance of counsel unpersuasive. Specifically, the record supports the court's determination that defendant's presentation to the grand jury in shackles and prison garb did not undermine the integrity of the proceeding because a limiting instruction was provided. Defendant's further contention, that it was ineffective for trial counsel not to seek dismissal of the indictment based upon this conduct, does not amount to ineffective assistance of counsel, given that, as previously discussed, such an "argument[ ], objection[ ] or motion[ ] [would have] had little or no chance of success" ( People v Bostic , 174 AD3d 1135 , 1138 [3d Dept 2019], lv denied 34 NY3d 1015 [2019]). The court further noted that despite defendant's contention that he was uninformed and unprepared for the grand jury presentation, the minutes of the proceeding show that he conferred with his counsel no less than six times during the proceeding, acknowledged that he understood that he had requested to appear to give testimony, that said testimony could be used against him and that he had denied any wrongdoing during the proceeding. Additionally, the court determined that defense counsel's election not to further explore the veracity of the order of protection did not constitute ineffective assistance of counsel, as a certified copy of the order was provided to defendant both at the grand jury proceeding and at trial. The court noted that the certified copy had been presented at trial as exhibit one and that the alleged failure to request the transcript from the date of the hearing at Troy City Court by defense counsel did not constitute ineffectiveness. Finally, the court indicated that defendant believed he had received ineffective assistance because he was not allowed to effectively participate in his own defense, which the court found to be without merit. A review of the record fully supports this conclusion. Accordingly, as to his ineffective assistance of counsel argument, defendant provided nothing to support the existence of material nonrecord facts that need to be established and would entitle him to relief; thus, a hearing was not warranted ( see People v Ferrer , 224 AD3d at 1096; People v Gilmore , 200 AD3d at 1193). Furthermore, defendant's claims of ineffective assistance of counsel are self-serving and contradicted [*8] by the record ( see People v Johnson , 194 AD3d 1267 , 1269-1270 [3d Dept 2021]). Indeed, defendant received meaningful representation, because, given the evidence, the law and the circumstances of this case, it is clear that defendant's representation was at all times consistent with the strategic decisions of a reasonably competent attorney, as the alleged failings of counsel now pressed by defendant in his CPL article 440 appeal were grounded in sound strategy, had little or no chance of success or are mischaracterized by defendant ( see People v Debellis , 40 NY3d 431 , 436 [2023]; People v Calafell , 211 AD3d at 1120). We have reviewed defendant's remaining contentions relative to the denial of his CPL 440.10 motion without a hearing and find them to be without merit. Aarons, J.P., Ceresia, McShan and Mackey, JJ., concur. Ordered that the judgment and the order are affirmed. Footnotes Footnote *: Defendant also argues that the order of protection was issued as a result of a case that was dismissed and sealed due to a six-month adjournment in contemplation of dismissal and, as such, it was not in effect at the time of the crimes alleged in the indictment. Not only was this argument not raised at trial, making it unpreserved for this Court's review on appeal ( see People v Bombard , 187 AD3d 1417 , 1417 [3d Dept 2020]), but it also is not supported by the record.

[Assistant]
In order to prevail at a Sirois hearing to determine the admissibility of an
unavailable witness's pretrial testimony, the People need not demonstrate
they first obtained a material witness order which the subject witness
ignored.


[User]
Summarize the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Pan 2024 NY Slip Op 06166 [233 AD3d 492] December 10, 2024 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] The People of the State of New York, Respondent, v Jia Pan, Appellant. Jenay Nurse Guilford, Center for Appellate Litigation, New York (Lena Janoda of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Faith DiTrolio of counsel), for respondent. Appeal from judgment, Supreme Court, New York County (Diane Kiesel, J.), rendered June 21, 2022, convicting defendant, upon his plea of guilty, of assault in the first degree and endangering the welfare of a child, and sentencing him to an aggregate term of 18 years, unanimously reversed, on the law, defendant's motion to withdraw and vacate his plea granted, and the matter remanded for further proceedings in accordance herewith. The People concede that defendant's right to counsel was violated by the court's ruling improperly prohibiting defendant from retaining an unpaid attorney who worked at a public defender organization which represented him on a related matter ( see People v Arroyave , 63 AD2d 127, 132 [1st Dept 1978], mod on other grounds 49 NY2d 264, 270-271 [1980]), and by the conflict of interest between assigned counsel and defendant that arose from counsel's disparaging statements, in court and in written submissions, about defendant and his possible defense of accidental stabbing. Defendant was also deprived of effective assistance when his counsel advised him that because of his plea, he will most likely be deported, since it is clear that defendant's conviction would trigger mandatory deportation ( see Padilla v Kentucky , 559 US 356, 368-369 [2010]; Singh v Barr , 939 F3d 457 [2d Cir 2019]; People v Pequero , 158 AD3d 421 [1st Dept 2018]). The remarks made by counsel on the record to the judge, as to what he advised his client with regard to the immigration consequences of his plea, are sufficient to permit review on direct appeal ( see People v Doumbia , 153 AD3d 1139 [1st Dept 2017]). Because we find defendant received ineffective assistance of counsel, it cannot be said that defendant voluntarily, knowingly, and intelligently entered his plea of guilty. We hereby vacate defendant's plea, and the case is remanded to permit defendant to proceed with new counsel. Concur—Manzanet-Daniels, J.P., Singh, Gesmer, Rodriguez, Michael, JJ.

[Assistant]
Defendant should have been permitted to withdraw his plea before
sentencing. Before defendant agreed to accept the People's offer, his
attorney told him that he would "most likely be deported" as a result of
pleading guilty; in fact, the plea subjected him to mandatory deportation.
Plea vacated & case remanded to trial court for further proceedings with a
new attorney.


[User]
Summarize the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Guerra 2024 NY Slip Op 04978 [231 AD3d 852] October 9, 2024 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2023 [*1] The People of the State of New York, Respondent, v Diego Guerra, Appellant. Patricia Pazner, New York, NY (Hannah Kon of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Ellen C. Abbot, and Joseph M. DiPietro of counsel), for respondent. Appeal by the defendant from a judgment of the Supreme Court, Queens County (Michael Aloise, J.), rendered October 3, 2019, convicting him of promoting a sexual performance by a child (19 counts) and possessing a sexual performance by a child (49 counts), upon a jury verdict, and imposing sentence. Ordered that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial. The defendant's contention that the evidence was legally insufficient to establish his guilt is partially unpreserved for appellate review ( see CPL 470.05 [2]). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15 [5]; People v Danielson , 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v Mateo , 2 NY3d 383 [2004]; People v Bleakley , 69 NY2d 490 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v Romero , 7 NY3d 633 [2006]). We are nevertheless compelled to reverse the judgment of conviction because the defendant's trial counsel (hereinafter defense counsel) was ineffective in signing, and permitting the jury to consider, a stipulation containing definitions of the crimes charged that eliminated the requisite mens rea element. Under the federal standard for ineffective assistance of counsel, a defendant must show that counsel's performance "fell below an objective standard of reasonableness, and that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different' " ( People v Bodden , 82 AD3d 781 , 783 [2011], quoting Strickland v Washington , 466 US 668, 694 [1984]; see People v Tindley , 202 AD3d 838 , 838-839 [2022]). Under the New York standard, a court must examine whether " 'the evidence, the law, and the circumstances of a particular case, [*2] viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation' " ( People v Oliveras , 21 NY3d 339 , 346 [2013], quoting People v Baldi , 54 NY2d 137, 147 [1981]; see People v Benevento , 91 NY2d 708, 712 [1998]; People v Parvez , 209 AD3d 885 , 886-887 [2022]). When reviewing claims of ineffective assistance, courts should take care to avoid "confusing true ineffectiveness with mere losing tactics" and "according undue significance to retrospective analysis" ( People v Baldi , 54 NY2d at 146; see People v Goondall , 173 AD3d 896 , 898 [2019]). Although "[i]solated errors in counsel's representation generally will not rise to the level of ineffectiveness" ( People v Henry , 95 NY2d 563, 565-566 [2000]), a single, egregious error by counsel may deprive a defendant of the right to effective assistance ( see People v Turner , 5 NY3d 476 , 480-481 [2005]; People v Henry , 95 NY2d at 566; People v Calderon , 66 AD3d 314 , 320 [2009]). Here, the defendant proceeded to trial on various counts of two crimes, promoting a sexual performance by a child and possessing a sexual performance by a child, all of which stemmed from videos and images affiliated with the defendant's laptop computer (hereinafter the laptop). "A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof , he produces, directs or promotes any performance which includes sexual conduct by a child less than [17] years of age" (Penal Law § 263.15 [emphasis added]). "A person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof , he knowingly has in his possession or control, or knowingly accesses with intent to view, any performance which includes sexual conduct by a child less than [16] years of age" ( id. § 263.16 [emphasis added]). A few days before the trial commenced, defense counsel and the prosecutor executed a stipulation entitled "Stipulation Elements of Crime." Among other things, they stipulated to the fact that certain videos underlying the counts of promoting a sexual performance by a child "depicted . . . a performance, which included sexual conduct by a child less than 17 years of age," and similarly stipulated as to the content of certain images underlying the counts of possessing a sexual performance by a child. We share the view of our colleagues in the dissent that these factual stipulations were intended to shield the jury from viewing the child sexual abuse perpetrated in the videos and images. However, the stipulation went on to state, in pertinent part, that " whoever possessed each of the . . . videos, promoted a performance, which included sexual conduct by a child . . . with knowledge of the character and content of the videos," and " whoever possessed these videos and images, knowingly had in his or her possession or control, or knowingly accessed with intent to view, a performance which included sexual conduct by a child" (emphasis added). A reasonable reading of this additional language in the stipulation is that possession alone is tantamount to promoting a performance with knowledge "of the character and content of" the videos, which is required to support a conviction of promoting a sexual performance by a child under Penal Law § 263.15, and that possession alone is tantamount to knowing "possession or control" or "access[ ] with intent to view," which is required to support a conviction of possessing a sexual performance by a child under Penal Law § 263.16. Thus, this additional language in the stipulation set forth definitions of the crimes that had no mens rea element ( cf. id. §§ 263.15, 263.16), under which possession alone could support a guilty verdict for each crime. In its initial instructions to the jury, the Supreme Court correctly charged the jury as to the crimes—i.e., the court's charge correctly included the mens rea element for each crime consistent with the definitions in the Penal Law. Among the contentions made by defense counsel in her opening statement was that, although a detective found the laptop "in the room" that the defendant rented, the laptop was not "passcode protected," and it was out in the open in a single-family house that had been partitioned into 11 bedrooms. Thus, defense counsel presented a theory that other individuals had access to the laptop, and other individuals may have been responsible for promoting the offending videos and images or causing them to be located on the laptop. Contrary to the suggestion of our dissenting colleagues, the defense theory in this case was not limited solely to the notion that the defendant did not possess the offending videos and images. The record reflects that the defendant's knowing possession of the videos and images was disputed at trial, and the [*3] defense theory included a lack of "knowing" possession or control ( id. § 263.16). At the close of the People's case, the Supreme Court confirmed that the stipulation was in evidence and discussed the stipulation for several minutes. At this time, defense counsel affirmatively indicated that she had no objection to the court reading the stipulation to the jury. After the jury returned to the courtroom, the court read the entire stipulation into the record and asked whether "both sides agree[d] to those stipulations." Defense counsel did not object. Defense counsel called one witness, an expert in digital forensics analysis, who testified that the laptop was not passcode protected and, if an external device, such as a flash drive, containing images was connected to the laptop, "thumbnail images" would automatically be created in "internal records of" the laptop. During summation, defense counsel referenced the stipulation, which contained the language eliminating the mens rea element for each crime, and proceeded to contend that many people lived in the defendant's house. Thus, defense counsel invited the jury to consider that someone else may have used the laptop to retrieve or share the videos and images. During deliberations, the jury requested a copy of the stipulation. At this point, defense counsel objected to the jury being provided with a copy of the stipulation and asked that the Supreme Court modify the language in the stipulation. In opposition, the People contended that the stipulation had been thoroughly discussed and agreed upon. The court denied defense counsel's application, noting that the parties had agreed to the stipulation and placed it into evidence, and provided the jury with a copy of the stipulation. Thereafter, the jury sent a note asking if it was "bound by the parties['] stipulation." Defense counsel requested that the court either modify the stipulation or give the jury an appropriate instruction advising them of the required mens rea element of the charged crimes. Defense counsel contended, in part, "can we all agree that I certainly did not sign a stipulation with a strict liability that if you found [the defendant] owned the [laptop] that he knew the images were there and that they [depicted child sexual abuse], because if that's the interpretation, I am duty bound to ask for a mistrial based on ineffective assistance of counsel." The court denied the motion for a mistrial. Thereafter, the jury found the defendant guilty of 19 counts of promoting a sexual performance by a child and 49 counts of possessing a sexual performance by a child. This record, including defense counsel's remarks, reflects that defense counsel's error in signing a stipulation that included incorrect and prejudicial definitions of the crimes charged was not part of any legal strategy or tactic. Significantly, the stipulation's elimination of the requisite mens rea element undermined the defense theory that, although the defendant undisputedly owned the laptop, someone else in his high-occupancy house may have been responsible for the videos or images being placed on the laptop or being trafficked using the laptop. Defense counsel's error in signing the stipulation was compounded by her failure to object to its admission into evidence and its presentation to the jury at the close of the People's case. The error was further compounded by defense counsel's failure to object to the disputed language in the stipulation until after the jury began its deliberations. These related errors left the jury on its own to choose between conflicting definitions of the crimes—one set that included the requisite mens rea element and one set that did not ( cf. People v Lourido , 70 NY2d 428, 435 [1987]; People v Byas , 172 AD2d 242, 243 [1991]). The detrimental impact on the jury and the prejudice to the defendant were made worse by the fact that the incorrect definitions, which vitiated the requisite mens rea element, were placed before the jury in a legal document signed by the defendant's own attorney. Although our dissenting colleagues emphasize that the full jury note asked two questions—whether the jury was "bound by the parties['] stipulation and procurement is the[ ] same as promoting"—this merely reflects that the jury was confused about both the stipulation's impact on the required mens rea element and about a separate element of the crime of promoting a sexual performance by a child. Therefore, even if this series of related errors regarding the stipulation is considered an "isolated" error ( People v Henry , 95 NY2d at 565), it was sufficiently egregious to deprive the defendant of his constitutional right to the effective assistance of counsel and, thus, he is entitled to a new trial ( see People v Turner , 5 NY3d at 480-481; People v Goondall , 173 AD3d at 899). [*4] Defense counsel's error in entering into the stipulation was further compounded by the Supreme Court's erroneous refusal to provide the jury with a clarifying instruction that its earlier legal instructions, which included the mens rea element of knowing possession, were controlling. In response to the jury's note inquiring as to whether the jury was "bound by the parties['] stipulation," defense counsel requested that the court clarify for the jury that its legal instructions on the elements of the charged crimes were controlling. The court refused to provide such a clarification and, instead, gave the jury a confusing instruction that "[a] stipulation is an agreement between the two parties that a certain fact is not an issue" and that "[t]he parties have agreed and stipulated to what you've read and seen." The court's response was not meaningful ( see People v O'Rama , 78 NY2d 270, 276 [1991]), as it improperly left the jury with the impression they were bound by the erroneous recitation of the elements of the charged offenses set forth in the stipulation, which eliminated the requisite element of knowledge. The court should have explained that its instructions on the elements of the crimes were controlling and clarified that possession alone was insufficient to support a guilty verdict for either promoting a sexual performance by a child or possessing a sexual performance by a child. Since this error bore on an element of the crimes charged, the defendant was clearly prejudiced by it ( see People v Manzano , 202 AD3d 994 [2022]; see also People v Lourido , 70 NY2d at 435). Since there must be a new trial, we note that the prosecutor engaged in improper conduct during summation ( see People v Vera , 222 AD3d 1003 , 1006 [2023]). "[S]ummation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his command. There are certain well-defined limits" ( People v Ashwal , 39 NY2d 105, 109 [1976]; see People v Drago , 207 AD3d 559 , 561 [2022]). Here, during the People's summation, the prosecutor said to the jury, in pertinent part, "the defendant . . . never emphatically denied that he didn't have [the videos and images]. He never, like, when . . . [a detective is] telling him, well, I found it on your cell phone, he never said no, no, no, no, no, it's not there, it can't be there, there is no way I would have it there, you know? . . . [w]hat else did the defendant not tell you? There were a lot of things he did not admit." These remarks improperly "convey[ed] to the jury the impression that the defendant knew he was guilty or he would have explained his actions" ( People v Kent , 125 AD2d 590, 591 [1986]; see People v McArthur , 101 AD3d 752 , 753 [2012]; People v Bailey , 159 AD2d 628, 629 [1990]), and the prejudicial effect of these improper remarks was not cured by a corrective instruction to the jury ( see People v Torres , 223 AD2d 741, 742 [1996]). In light of our determination, we need not address the defendant's remaining contention. Miller, Voutsinas and Wan, JJ., concur. Brathwaite Nelson, J.P., dissents, and votes to affirm the judgment, with the following memorandum, in which Dowling, J., concurs: I agree that the evidence was legally sufficient to establish the defendant's guilt of all counts beyond a reasonable doubt and that the verdict of guilt was not against the weight of the credible evidence. My colleagues in the panel majority, however, confuse a stipulation of facts by the parties with the Supreme Court's instruction of the law to the jury. The jury was not presented with conflicting instructions on the law. The court accurately instructed the jury on the elements of the crimes charged and accurately instructed the jury that a stipulation is an agreement between the parties that a certain fact is not an issue in the trial. Therefore, I cannot agree with the panel majority that the court erred in its instruction to the jury. Furthermore, the record shows that defense counsel's decision to stipulate to certain facts, including that whoever possessed the subject images knew the character and content of the images and knowingly had them in his or her possession, was part of a failed trial strategy that focused on whether the defendant was the person who had possessed the images. Pursuant to the evidence submitted at trial and the court's proper instruction to the jury, mere possession of the laptop was not enough to establish possession. The jury was required to infer from the circumstantial evidence that the defendant had used the laptop as a conduit to store the images on an external USB drive. The defense theory was that the defendant had never possessed the images and that he had come into possession of the laptop well after it had been used [*5] to download and share the images depicting child sexual abuse. Thus, knowledge of the nature of the images was not a disputed fact, and defense counsel's stipulation to such facts was not "true ineffectiveness" ( People v Baldi , 54 NY2d 137, 146 [1981]). I therefore respectfully dissent and would affirm the judgment. A detective in the Special Crimes Task Force focusing on child exploitation cases testified that in January 2017, he conducted a search of the Ares network, an online peer-to-peer sharing platform. The detective found and was able to download 19 videos depicting child sexual abuse that were being shared onto the network from a particular IP address in Queens. The videos depicted children ages 3 to 12, naked and holding or being penetrated by adult penises. Six months later, on July 27, 2017, police officers executed a search warrant at a house associated with the IP address, which was a three-family house with a basement and two upper stories. The house had been divided into 11 bedrooms, rented to tenants, and had shared kitchens and bathrooms. Among other devices, officers seized a laptop in a second-floor bedroom that was rented by the defendant and a roommate. The roommate identified the laptop as belonging to the defendant. Upon a digital forensic examination of the laptop, no images or videos of child sexual abuse were found. However, there were indications or artifacts that an Ares program had been used on the laptop with the username from which the 19 videos had been downloaded. More specifically, there was an indication that an external USB drive had been attached to the laptop, using the laptop as a conduit to connect to the Ares network, and that images received from the Ares program were stored on the USB drive. Upon further forensic examination, more than 30 images depicting child sexual abuse were found in the deleted or unallocated space on the laptop. The images showed female children between the ages of two and nine, many naked and holding or being penetrated by penises. These images had been viewable on the laptop in the past but at the time of the search, they could only be viewed using forensic software. No USB drive was recovered from the defendant's bedroom. Pictures of the defendant and documents containing the defendant's resume were found on the desktop of the laptop. The defendant, who was not home at the time of the police officers' search of the house, was later interviewed by detectives. The defendant told the detectives that he fixes computers and had found the laptop two to three months earlier in the garbage outside of the house where he lived. The laptop was already connected to the Wi-Fi of the house, which caused the defendant to believe that it had belonged to someone who had lived there and moved away. The defendant denied ever having used the Ares program and denied having the password to the Wi-Fi of the house. He told the detectives that he used the laptop to listen to music with the other residents of the house. The defendant was charged with 19 counts of promoting a sexual performance by a child and 49 counts of possessing a sexual performance by a child, among other things. In her opening statement, defense counsel told the jury that the evidence would show that the defendant acquired the laptop in May or early June, several months after the videos allegedly were shared on the Ares network, that the images on the laptop existed in hidden space on the laptop, that no images were found on the laptop itself, and that the police officers searched the defendant's bedroom and his other electronic devices and found no other evidence connecting the defendant to the images or videos. Defense counsel further told the jury that the evidence would show that the laptop was not passcode protected, that the laptop had users other than the defendant and was kept in the open, that 24 other people lived at the house in January 2017, and that there were common spaces for the people who lived there to meet and hang out. Defense counsel presented the testimony of an expert in digital forensics analysis, who testified that the laptop was not passcode protected. The parties stipulated to certain facts, including that each of the 19 videos that was downloaded in January 2017, depicted and promoted a performance, which included sexual conduct by a child less than 17 years of age, and that whoever possessed the videos promoted such a performance with the knowledge of the character and content of such videos. The parties also stipulated that whoever possessed the videos and images knowingly had in his or her possession or [*6] control, or knowingly accessed with intent to view, a performance, which included sexual conduct by a child less than 16 years of age. At the close of the People's case, defense counsel moved to dismiss all counts, contending that the central issue in the case was identity and that the People had failed to establish that the defendant was the person who shared the videos on the Ares network in January 2017, as the People's evidence established that the defendant came into possession of the laptop several months later. Defense counsel renewed the motion at the close of the evidence, contending again that identity was the key issue in the case, that approximately 24 people lived in the house, and that no evidence had been presented establishing that the defendant was the exclusive owner or user of the laptop in January 2017, or establishing when the images were deleted and came into the unallocated space on the laptop. Defense counsel contended that there was an absence of direct evidence and that to be legally sufficient, the circumstantial evidence would need, at a minimum, to establish when the images came into the unallocated space on the laptop and that the defendant was in exclusive possession of the laptop at that time, but no such evidence had been presented. Defense counsel further contended that at the time that the police officers conducted the search, 20 devices were seized, but the laptop was the only one that was analyzed. The People responded that it was their position that the defendant had been untruthful in his statements to the detectives and that he had been in exclusive possession of the laptop since August 2016, and kept it locked in his room. The defendant's motions were denied. In summation, defense counsel adhered to the defense theory of the case that the defendant did not possess the laptop at the relevant time with regard to the videos and that no images were actually found on the laptop. Defense counsel contended that the evidence established that the defendant did not come into possession of the laptop until several months after the videos were shared, that it was undisputed that the Ares program was not installed on the laptop, but was on a USB drive not in the defendant's possession, that no images were found on the laptop, and that only some artifacts indicating that the laptop had been used as a conduit for the USB drive to connect to the Ares network. Defense counsel further contended that the police officers failed to conduct a forensic analysis of the other devices found in the house belonging to the other residents and did not search the other rooms in the house for a USB drive, which was the critical piece of evidence in the case. With respect to the images that were found in the unallocated space of the laptop, defense counsel argued that they existed in a thumbnail cache only and were accessed at a time when a USB drive was connected to the laptop. Defense counsel contended that a person could knowingly possess the images only by using a USB device because they did not exist on the laptop, and there was an eight-year span in which the subject 30 images could have been created in the unallocated space. Defense counsel further contended that there was no evidence that the laptop was the device that was used to share the 19 videos in January 2017, and in the absence of a USB device, it was pure speculation that this laptop was the conduit used at that time. The Supreme Court charged the jury consistent with the Penal Law that "a person is guilty of promoting a sexual performance by a child when knowing the character and content thereof he produces, directs, [or] promotes any performance which includes sexual conduct by a child less than 17 years of age" ( see Penal Law § 263.15), and that promote means to procure, give, provide, lend, transfer, or distribute, among other possibilities ( see Penal Law § 263.00 [5]). The court instructed the jury that in order to find the defendant guilty, it would need to find that the People had proven beyond a reasonable doubt that the defendant produced, directed, or promoted such a performance and that he knew the character and the content of such performance. The Supreme Court also instructed the jury consistent with the Penal Law that "a person is guilty of possessing a sexual performance by a child when knowing the character and the content, he knowingly has in his possession or control or knowingly accesses with the intent to view any performance which includes sexual conduct by a child less than 16 years of age" ( see Penal Law § 263.16). The court further instructed the jury that "[i]mages stored in cache of the computer may constitute evidence of images that were previously viewed, however, viewing computer images of a sexual performance of a child on a computer does not by itself constitute possession or control of such images. Rather, such affirmative acts such as printing, saving, downloading or the like is [*7] required to show [that] the defendant, in fact, exercised dominion or control over images on his screen." During deliberations, the jury asked for a copy of the parties' stipulation. At that time, defense counsel, among other things, asked for "curative action" to alter the parties' stipulation of the facts with respect to possessing a sexual performance by a child so that the stipulation would read that "whoever knowingly possessed the videos and images knowingly had them in his possession and control" (emphasis added). The People opposed the application on the ground that the stipulation had been thoroughly discussed and reflected the parties' agreement regarding the facts. The Supreme Court denied the application, noting that the written stipulation had been worked out, signed, and placed into evidence, and the court would not alter the evidence when the jury was asking to see it. The jury sent a subsequent note asking whether they were "bound by the parties['] stipulation and procurement is the[ ] same as promoting." Defense counsel contended that the jury was confused on the element on knowing possession and again sought to alter the parties' stipulation and sought a mistrial when the application was denied. The Supreme Court instructed the jury that "[a] stipulation is an agreement between the two parties that a certain fact is not an issue. The parties have agreed and stipulated to what you've read and seen." The court then repeated the definition of promoting a sexual performance by a child, which was consistent with the Penal Law. The jury convicted the defendant of 19 counts of promoting a sexual performance by a child and 49 counts of possessing a sexual performance by a child. Contrary to the conclusion of the panel majority, the jury was not presented with contradictory instructions on the essential elements of the crimes charged. The suggestion that the parties' stipulation was an instruction on the law is incorrect. The Supreme Court correctly instructed the jury that the stipulation was merely an agreement between the parties that a certain fact was not at issue. "[A] stipulation is an agreement, admission, or concession made in a judicial proceeding by the parties thereto or their attorneys, in respect of some matter incident to the proceeding, for the purpose, ordinarily, of avoiding delay, trouble and expense" ( People v White , 73 NY2d 468, 476 [1989] [alteration and internal quotation marks omitted]). It is solely the court's function to instruct the jury on the law ( see CPL 300.10 [2]). "A stipulation does not remove an element of a crime from a statute[, and] every element has to be charged and submitted to the jury" ( People v Hills , 140 AD2d 71, 79 [1988]). Here, it is not disputed that the Supreme Court's charge to the jury correctly conveyed the elements of the crimes charged. As repeatedly contended by defense counsel during trial, the crux of the case was the identity of the person who shared the 19 videos onto the Ares network from the IP address in January 2017, and, whether the same or different person, the identity of the person who possessed the USB drive that held the Ares program and the files that were captured in cache in the unallocated space on the laptop at some unidentified time prior to the July 2017 seizure of the laptop. In order to narrow the focus of the trial, the parties stipulated to the content of the 19 video images and the 30 cached images and stipulated to the facts that, in this case, whoever possessed the videos promoted them with knowledge of their character and content and whoever possessed the videos and images knowingly did so with the intent to view them. To the extent that the defendant contends that the court should have allowed him to reopen the case during jury deliberations so as to allow him to stipulate to a different set of facts, this contention is without merit ( see People v Ford , 219 AD3d 501 [2023]; People v McCloud , 305 AD2d 428 [2003]). Moreover, notwithstanding defense counsel's doubts expressed during jury deliberations, the parties' stipulation to certain facts did not allow the jury to find that whoever possessed the laptop knowingly possessed the videos and images. As contended by defense counsel to the jury, the 19 videos that were uploaded from an Ares account at the IP address in January 2017 were not found on the laptop, nor was any direct evidence presented connecting the username from which the videos were shared to the laptop. In order to find the defendant guilty of the counts of promoting a sexual performance by a child, the jury had to infer from the circumstantial evidence that the defendant was the person who shared the videos on the Ares network from the specific [*8] username in January 2017. There was no factual scenario presented to the jury in which the defendant's guilt of those counts was established merely by possessing the laptop. Similarly, because the videos were not on the laptop when it was seized in July 2017, the defendant's guilt of the 19 counts of possessing a sexual performance by a child relating to those videos could not have turned on his mere possession of the laptop. As to the remaining 30 counts of possessing a sexual performance by a child, which were predicated on the cached images in the unallocated space of the laptop, the Supreme Court instructed the jury that the mere existence of those images on a computer did not constitute possession within the meaning of the law and that even viewing the images on the laptop would not constitute possession or control of such images. Rather, as the court instructed, the jury was required to find that the defendant engaged in an affirmative act "such as printing, saving, downloading or the like." "A jury is assumed to follow the instructions of the court" ( People v Stone , 29 NY3d 166 , 171 [2017]). Thus, contrary to the conclusion of the panel majority, notwithstanding defense counsel's stipulation to the fact that whoever possessed the images did so knowing their character and content, the mere possession of the laptop, even with the cached images thereon, did not establish guilt of possessing a sexual performance by a child. The panel majority's speculation that the jury was confused on the element of knowledge is not supported by the record. The full jury note asked whether the jury was "bound by the parties['] stipulation and procurement is the[ ] same as promoting." The jury question related to the element of "promoting" with respect to the counts of promoting a sexual performance by a child, not "possession" with respect to the counts of possessing a sexual performance by a child. In response to the jury's note, the Supreme Court properly clarified that a stipulation is an agreement relating to the facts, and the court correctly instructed the jury on the element of "promoting" with respect to the 19 counts of promoting a sexual performance by a child. The jury expressed no confusion thereafter and did not seek any instruction with respect to knowing possession. Contrary to the conclusion of the panel majority, I find no error in the court's charge to the jury. The defendant's contention that he was deprived of the effective assistance of counsel is also without merit. In order to establish an ineffective assistance of counsel claim under the Sixth Amendment to the United States Constitution, a defendant must demonstrate that trial counsel "committed errors so egregious that he or she did not function as counsel within the meaning of the United States Constitution," and that the deficient performance "actually prejudiced the defendant" ( People v Gross , 26 NY3d 689 , 693 [2016]; see Strickland v Washington , 466 US 668, 688, 694 [1984]). "New York's constitutional requirement of effective assistance of counsel is met when 'the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation' " ( People v Gross , 26 NY3d at 693, quoting People v Benevento , 91 NY2d 708, 712 [1998]). "Under both standards, 'the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy' " ( People v Honghirun , 29 NY3d 284 , 289 [2017] [internal quotation marks omitted], quoting Strickland v Washington , 466 US at 689). "There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way" ( Strickland v Washington , 466 US at 689). The court "must be careful not to second-guess counsel, or assess counsel's performance with the clarity of hindsight, effectively substituting its own judgment of the best approach to a given case" ( People v Nicholson , 26 NY3d 813 , 831 [2016] [internal quotation marks omitted]; see People v Benevento , 91 NY2d at 712). "[M]ere losing tactics" should not be confused with "true ineffectiveness" ( People v Baldi , 54 NY2d at 146; see People v Benevento , 91 NY2d at 712). "The test is reasonable competence, not perfect representation" ( People v Nicholson , 26 NY3d at 831 [internal quotation marks omitted]; see People v Honghirun , 29 NY3d at 291). Here, the defendant failed to establish that he was denied the effective assistance of counsel by defense counsel's entering into the stipulation. Notably, by stipulating to the content of the 19 videos and 30 images, defense counsel intended to shield the jury from hearing the details of the child sexual abuse perpetrated in each video and image. In addition, the record plainly demonstrates that the theory of the defense was that the defendant never possessed any of the videos or the images, not that he possessed them without knowing the nature of their content. Since none [*9] of the videos was found on the laptop and the images existed only in the unallocated space, which, pursuant to the Supreme Court's instruction to the jury, was insufficient to establish possession within the meaning of the Penal Law, defense counsel's strategy was reasonable. Defense counsel's stipulation to the facts that whoever possessed the 19 videos promoted a performance with knowledge of the character and content of the videos and that whoever possessed the videos and images knowingly had in his or her possession a performance which included sexual conduct by a child less than 16 years of age, was consistent with the defense theory that the defendant never possessed the videos or images. In light of the evidence presented at trial and the court's instruction to the jury regarding possession, the defense strategy was reasonable and "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; see People v Honghirun , 29 NY3d at 290). The defendant contends that he was deprived of a fair trial as a result of certain remarks made by the prosecutor during summation. The challenged remarks either constituted fair comment on the evidence and the reasonable inferences to be drawn therefrom or were not so flagrant or pervasive as to have deprived the defendant of a fair trial ( see People v Green , 223 AD3d 914 , 915 [2024]; People v Ingrassia , 207 AD3d 751 , 752 [2022]). Moreover, the evidence of the defendant's guilt was overwhelming, and there is no significant probability that any improper remarks made by the prosecutor during summation contributed to the defendant's convictions ( see People v Crimmins , 36 NY2d 230, 241-242 [1975]; People v Green , 223 AD3d at 915). The defendant's remaining contention is without merit. I therefore respectfully dissent and would affirm the judgment of conviction.

[Assistant]
Sharply divided panel reversed child porn convictions and ordered a new
trial, primarily because defense counsel agreed to a stipulation containing
definitions of the crimes charged that eliminated the requisite mens rea
element. Counsel did not object to the stipulation being given to the jury
and and did not object to the disputed language in the stipulation until after
the jury began its deliberations. As a result, the jury was left "on its own"
to choose between conflicting definitions of the crimes—one set that
included the requisite mens rea element and one set that did not.


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Vehicle stops & searches and the subtopic of VTL violation as basis for stop. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Rufus 2024 NY Slip Op 06384 Decided on December 19, 2024 Court of Appeals Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 19, 2024 No. 120 [*1] The People & c., Respondent, v Parris J. Rufus, Appellant. Edward L. Fiandach, for appellant. Amy N. Walendziak, for respondent. RIVERA , J. Defendant challenges his conviction of driving while intoxicated, claiming that the vehicular stop that led to his arrest was unlawful. Defendant also claims that the trial evidence was legally insufficient to support the court's guilty verdict on that count and weighed in favor of acquittal. Based on the totality of the circumstances, we conclude that the officers had probable cause to stop defendant after they observed his vehicle cross the fog line three times within a short distance and time. [FN1] We also conclude that defendant's legal insufficiency claim is without merit and his weight of the evidence claim is unreviewable ( see People v Bleakley , 69 NY2d 490, 495 [1987]; see also People v Danielson , 9 NY3d 342 , 349 [2007]). Therefore, we affirm the Appellate Division. *** Defendant was charged and convicted following a nonjury trial of felony driving while intoxicated under Vehicle and Traffic Law ("VTL") § 1192 (3). Before trial, defendant moved to suppress evidence of his intoxication obtained during the car stop, arguing that the stop was unsupported by probable cause. The evidence adduced at the suppression hearing showed that defendant was driving in the right-hand lane of a three-lane interstate highway at approximately 2 AM on a Sunday, with two State Troopers, Tiwana and Statt, behind him in a patrol car. The [*2] troopers testified that they observed the tires on the right side of defendant's vehicle cross the solid white fog line onto the right shoulder of the road three times within a tenth of a mile. Defendant was traveling within the speed limit. Trooper Tiwana testified that he directed defendant to pull over. After defendant complied, Trooper Tiwana approached on the driver's side and observed that defendant was the sole occupant. He then informed defendant that he was pulling him over for swerving over the line, asked him where he was traveling, and requested his driver's license and vehicle registration. Defendant handed over his license but gave the trooper the plastic backing of an air freshener instead of his registration, which he provided later during the encounter. Trooper Tiwana further testified that during these initial interactions, he smelled a strong odor of alcohol, noted that defendant's speech was slurred and illogical, and observed that defendant had bloodshot, glassy eyes and droopy eyelids. According to the trooper, defendant claimed that "he was swerving because he saw [the] patrol car approaching from the rear." Trooper Tiwana then asked defendant to exit the vehicle. The trooper observed that, as defendant was getting out, he grabbed the car door for balance before walking slowly toward the front of the car. Trooper Tiwana then administered four sobriety tests, the results of which led him to conclude that defendant was intoxicated. He then placed defendant under arrest and transported him to a local police station. During the ride, defendant volunteered that he had been drinking, although, before the arrest, he had denied consuming alcohol. At the station, defendant refused to take a chemical breath test. The court denied defendant's motion to suppress, crediting the troopers' testimony that they observed defendant's vehicle cross the fog line three times within a tenth of mile, which supported their reasonable belief that defendant had violated VTL § 1128 (a). At defendant's bench trial, the troopers testified consistently with their suppression hearing testimonies, and the court admitted the police report of defendant's refusal to submit to a chemical test. Based on the record evidence, the court found defendant guilty of driving while intoxicated, in violation of VTL § 1192 (3), and later sentenced him. [FN2] A divided Appellate Division affirmed, concluding that the record supported the suppression court's determination that Trooper Tiwana had probable cause to believe that defendant violated VTL § 1128 (a) before stopping his vehicle because he had observed the vehicle "swerve and cross over the white fog line three times within a tenth of a mile" (220 AD3d 1162 [4th Dept 2023]). The majority also rejected defendant's remaining claims. The dissenting justices would have reversed the conviction solely on the lack of probable cause because, in their view, there was no evidence of defendant's unsafe driving ( see id. at 1163-1167 [Curran and Ogden, JJ., dissenting]). One of the dissenting justices granted defendant leave to appeal. As relevant here, an automobile stop is lawful when it is " 'based on probable cause [to believe] that a driver has committed a traffic violation' " ( People v Hinshaw , 35 NY3d 427 , 430 [2020], quoting People v Robinson , 97 NY2d 341, 350 [2001]). Here, the troopers stopped defendant based on an alleged violation of VTL § 1128 (a). That section provides: "[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." Whether a driver has violated VTL § 1128 (a) is a fact-specific determination, which depends upon what is "practicable" under the circumstances and what a driver has "ascertained." Thus, whether conduct observed by an officer amounts to a probable violation of VTL § 1128 (a) is a determination based on the totality of the circumstances. Defendant's claim that the troopers lacked a lawful basis to stop him because he was not swerving or otherwise driving erratically is a gross mischaracterization of the record and is contradicted by his own statement. The hearing court credited Trooper Tiwana's testimony that he stopped defendant for swerving over the fog line and that defendant told him that he swerved because he saw the patrol car behind him. We find unpersuasive defendant's effort to minimize his conduct as a brief, subtle lane departure, commonly observed on the road and generally accepted as within the bounds of the law. The troopers observed signs of alarming driving. The record shows that defendant did not merely "touch" the fog line or barely cross over it once while otherwise abiding by all rules of the road. Rather, both troopers testified that defendant crossed the fog line three times within seconds and a short distance [*3] of a tenth of a mile. Thus, contrary to the defendant's suggestion his failure to stay in his lane was not a de minimis diversion. When a driver swerves over the fog line repeatedly, in quick succession, they have failed to "drive[ ] as nearly as practicable entirely within a single lane" in violation of VTL § 1128 (a) ( see e.g. Schoonmaker v New York State Dept. of Motor Vehicles , 33 NY3d 926 , 928 [2019] [testimony that vehicle "ma(de) an erratic movement off the right side of the road, crossing the fog line and moving off the shoulder with the vehicle's right front tire" provided substantial evidence that stop was lawful under VTL § 1128 (a)]; People v Tandle , 71 AD3d 1176 , 1177, 1178 [2d Dept 2010]; People v Parris , 26 AD3d 393 , 394 [2d Dept 2006]; cf. People v Davis , 58 AD3d 896, 898 [3d Dept 2009] [police officer's testimony that driver had made "brief contacts with the fog line," but not that driver was, for example, "weaving, driving erratically or even that he drove onto the shoulder" was insufficient to support traffic stop under VTL § 1128 (a)]). On these facts, the troopers' observations, which were credited by the suppression court, established probable cause for the traffic stop. Therefore, the court properly denied the motion to suppress. Defendant's challenges based on the sufficiency and weight of the evidence do not warrant reversal. "A verdict is legally sufficient when, viewing the facts in a light most favorable to the People, 'there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt' " ( Danielson , 9 NY3d at 349, quoting People v Acosta, 80 NY2d 665, 672 [1993]). Section 1192 (3) of the VTL states that "[n]o person shall operate a motor vehicle while in an intoxicated condition." Trooper Tiwana testified at trial that he observed defendant bearing tell-tale physical signs of intoxication: bloodshot and glassy eyes; slurred and illogical speech; and conduct incongruous with that of a sober driver, such as providing a plastic air freshener wrapper instead of the vehicle registration card. These signs were confirmed by the results of defendant's field sobriety tests and by defendant's admission that he had been drinking. That evidence supports defendant's conviction of driving while intoxicated, in violation of VTL § 1192 (3) ( cf. People v Cruz , 48 NY2d 419, 427 [1979]). Defendant's weight of the evidence challenge is unreviewable because where, as here, the Appellate Division has properly considered such a challenge, "this Court is without authority to review the Appellate Division's . . . determination" ( Danielson , 9 NY3d at 349; cf. People v Kancharla , 23 NY3d 294 , 306 [2014]). Accordingly, the order of the Appellate Division should be affirmed. Order affirmed. Opinion by Judge Rivera. Chief Judge Wilson and Judges Garcia, Singas, Cannataro, Troutman and Halligan concur. Decided December 19, 2024 Footnotes Footnote 1: The "fog line" is the solid white line that runs between the roadway and the shoulder. Footnote 2: The court dismissed the second count of the indictment, refusal to take a breath test in violation of VTL § 1194 (1) (B).

[Assistant]
Troopers' testimony that defendant swerved over the fog line 3 times
within in a short distance and time was credited by the suppression court
and established probable cause for the traffic stop [see Vehicle and Traffic
Law § 1128 (a)].