THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. TYQUAN RIVERA DEFENDANT APPELLANT (2013)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him as a juvenile offender, upon a jury verdict, of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ) and assault in the first degree (§ 120.10[1] ) in the shooting of a Rochester police officer.   We reject defendant's contention that he was deprived of effective assistance of counsel based solely on an allegedly prejudicial statement that defense counsel made during his opening statement concerning a rumor that the shooting was part of a gang initiation, which defense counsel promptly stated was baseless.  “A single error may qualify as ineffective assistance, but only when the error is sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial” (People v. Caban, 5 NY3d 143, 152;  see People v. Atkins, 107 AD3d 1465, 1465).   Such an error did not occur here.   This was a high publicity case, and defendant has not demonstrated “ ‘the absence of strategic or other legitimate explanations' for counsel's alleged shortcoming [ ]” (People v. Benevento, 91 N.Y.2d 708, 712).   In addition to contending that the above error by itself warrants reversal, defendant also contends that there were other instances of ineffectiveness.   With respect to those instances, we conclude that defendant has failed to demonstrate that he was prejudiced thereby (see People v. Vasquez, 20 NY3d 461, 468;  People v. Caban, 5 NY3d 143, 155–156), or that this is more than a “simple disagreement with strategies and tactics” (People v. Rivera, 71 N.Y.2d 705, 709).   Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147).

Contrary to defendant's further contention, we conclude that the evidence is legally sufficient to support the conviction and, 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 further conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).  “The fact that no one saw defendant fire the shot that [injured] the victim does not render the evidence legally insufficient, inasmuch as there was ample circumstantial evidence establishing defendant's identity as the shooter” (People v. Moore [appeal No. 2], 78 AD3d 1658, 1659, lv denied 17 NY3d 798).   Moreover, “[w]here, as here, defendant's statements could be interpreted as relevant admissions of guilt ․, there [i]s both direct and circumstantial evidence” of defendant's guilt (People v. Casper, 42 AD3d 887, 888, lv denied 9 NY3d 990 [internal quotation marks omitted] ).   Finally, we have considered defendant's remaining contentions and conclude that none requires reversal or modification of the judgment.

Frances E. Cafarell

Clerk of the Court