THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MICHAEL WELLBORN ALSO KNOWN AS GHOST DEFENDANT APPELLANT (2011)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, robbery in the first degree (Penal Law § 160.15[4] ) and burglary in the first degree (§ 140.30[4] ).

We reject defendant's contention that he did not receive effective representation at trial (see generally People v. Baldi, 54 N.Y.2d 137, 147).   Defendant failed to meet his burden of

“ ‘demonstrat[ing] the absence of strategic or other legitimate explanations' “ for certain alleged failures of defense counsel (People v. Benevento, 91 N.Y.2d 708, 712), and we note that other alleged shortcomings of defense counsel identified by defendant are belied by the record.   Defendant failed to preserve for our review his contention that he was denied a fair trial based on prosecutorial misconduct during summation (see CPL 470.05[2] ) and, in any event, that contention lacks merit.   The alleged misconduct by the prosecutor on summation, including statements that the case was “simple” and that certain inferences were “pretty clear,” remained within “ ‘the broad bounds of rhetorical comment permissible’ “ during summations (People v. Williams, 28 AD3d 1059, 1061, affd 8 NY3d 854).

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 N.Y.2d 490, 495).   While a different result would not have been unreasonable, upon our review of the record we conclude that the jury did not fail to give the evidence the weight it should be accorded (see Bleakley, 69 N.Y.2d at 495).  “The fact that two of the People's witnesses had unsavory backgrounds ․ does not render their respective testimony incredible as a matter of law” (People v. Adams, 302 A.D.2d 601, lv denied 100 N.Y.2d 592).

Patricia L. Morgan

Clerk of the Court