PEOPLE v. LUGO (2006)

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Ort, J.), rendered September 3, 2003, convicting him of assault in the second degree (two counts), and endangering the welfare of a minor, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's challenge to the trial court's Ventimiglia/ Molineux ruling (see People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59;  People v. Molineux, 168 N.Y. 264, 61 N.E. 286) is without merit.   The evidence of the defendant's prior acts of abuse was properly admitted, as it was relevant to show the absence of accident (see People v. Figueroa, 245 A.D.2d 463, 666 N.Y.S.2d 464;  People v. Basir, 179 A.D.2d 662, 664, 578 N.Y.S.2d 603).   Moreover, such evidence is especially warranted in cases such as this involving child abuse, “where the crime charged has occurred in the privacy of the home and the facts are not easily unraveled” (People v. Henson, 33 N.Y.2d 63, 72, 349 N.Y.S.2d 657, 304 N.E.2d 358;  see People v. Basir, supra ).

 To prevail on a claim of ineffective assistance of counsel, “it is incumbent on [the] defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's failure” (People v. Montana, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;  see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Jean, 21 A.D.3d 499, 799 N.Y.S.2d 740).  “So long as 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, the constitutional requirement will have been met” (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  see People v. Jean, supra ).   Here, the record demonstrates that the defendant received meaningful representation (see People v. Benevento, supra ).   The defense counsel presented a clear and cogent opening and summation, a five-witness defense, and secured the defendant an acquittal on the top three charges of assault in the first degree.

The remaining contentions raised in the defendant's supplemental pro se brief are unpreserved for appellate review and, in any event, are without merit.