PEOPLE v. ROBINSON (2007)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.), rendered February 3, 2006, convicting him of robbery in the second degree (two counts), robbery in the third degree, and assault in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50(5).

The defendant failed to preserve for appellate review his contention that the evidence with respect to the convictions of robbery in the second degree and robbery in the third degree was legally insufficient to establish his guilt beyond a reasonable doubt (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 20-21, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of robbery in the second degree and robbery in the third degree beyond a reasonable doubt.

 Photographs depicting the victim of the crime taken shortly after it occurred by a police officer at the precinct were properly admitted into evidence, as they tended to establish a material element of the crimes charged (see People v. Wood, 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178;  People v. Stevens, 76 N.Y.2d 833, 560 N.Y.S.2d 119, 559 N.E.2d 1278).   Moreover, the trial court properly granted the prosecution's application, pursuant to CPL 60.25, to permit police testimony regarding the victim's showup identification of the defendant shortly after the crime occurred.   The trial court properly determined that the victim was unable to make an in-court identification of the defendant based on the failure of his present recollection (see People v. Quevas, 81 N.Y.2d 41, 45, 595 N.Y.S.2d 721, 611 N.E.2d 760;  People v. Cwikla, 46 N.Y.2d 434, 444, 414 N.Y.S.2d 102, 386 N.E.2d 1070;  People v. Harden, 6 A.D.3d 181, 182, 778 N.Y.S.2d 7;  People v. Hernandez, 154 A.D.2d 197, 200, 552 N.Y.S.2d 649).   The defendant's contention that police testimony regarding the circumstances of his arrest should not have been admitted into evidence is unpreserved for appellate review, and in any event, is without merit (see CPL 470.05[2];  People v. Vanier, 255 A.D.2d 610, 680 N.Y.S.2d 877).

There is no merit to the defendant's claim that he was denied the effective assistance of counsel because trial counsel failed to pursue a defense addressed to whether the defendant intended to commit the crime of robbery.   The defense asserted at trial was a reasonable one, and the defendant's claim constitutes a mere disagreement with trial strategy and tactics that failed (see People v. Henry, 95 N.Y.2d 563, 565, 721 N.Y.S.2d 577, 744 N.E.2d 112;  People v. Benn, 68 N.Y.2d 941, 942, 510 N.Y.S.2d 81, 502 N.E.2d 996;  People v. Lane, 60 N.Y.2d 748, 750, 469 N.Y.S.2d 663, 457 N.E.2d 769).

The defendant's remaining contention is without merit.