PEOPLE v. CRESPO (2008)

Defendant appeals from a judgment convicting him after a nonjury trial of robbery in the third degree (Penal Law § 160.05), assault in the third degree (§ 120.00[1] ), and menacing in the second degree (§ 120.14 [1] ).   We reject the contention of defendant that he was denied effective assistance of counsel based upon defense counsel's failure to assert the defense that defendant was not guilty by reason of mental disease or defect (see generally People v. Davalloo, 39 A.D.3d 559, 833 N.Y.S.2d 576, lv. denied 9 N.Y.3d 864, 840 N.Y.S.2d 894, 872 N.E.2d 1200).   Defendant failed to meet his burden of “demonstrat[ing] the absence of strategic or other legitimate explanations” for defense counsel's failure to assert that defense (People v. Garcia, 75 N.Y.2d 973, 974, 556 N.Y.S.2d 505, 555 N.E.2d 902) and, upon our review of the record, we conclude that defense counsel provided meaningful representation to defendant (see generally People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Contrary to defendant's further contention, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

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

MEMORANDUM: