PEOPLE v. MITCHELL (2006)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered September 24, 2003, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that the admission of a tape recorded 911 call into evidence violated his rights under the Confrontation Clause.   Since no objection was raised to the admissibility of the tape at trial, the defendant's contention is unpreserved for appellate review (see CPL 470.05 [2];  People v. Cato, 22 A.D.3d 863, 802 N.Y.S.2d 753;  People v. Marino, 21 A.D.3d 430, 800 N.Y.S.2d 439, cert. denied 548 U.S. 908, 126 S.Ct. 2930, 165 L.Ed.2d 958;  People v. Bones, 17 A.D.3d 689, 793 N.Y.S.2d 545).   In any event, the admission of the tape of a caller's statements to the 911 operator did not violate the defendant's right to confrontation because the statements were not testimonial (see Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224;  People v. Cato, supra;  People v. Marino, supra;  People v. Coleman, 16 A.D.3d 254, 791 N.Y.S.2d 112;  People v. Moscat, 3 Misc.3d 739, 777 N.Y.S.2d 875).

 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).  “[S]o 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).   Here, the record demonstrates that the defendant received meaningful representation (see People v. Benevento, supra ).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).