PEOPLE v. ROBINSON

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Curtis ROBINSON, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  GREEN, J.P., HURLBUTT, SCUDDER, GORSKI, AND LAWTON, JJ. Edward J. Nowak, Public Defender, Rochester (Timothy P. Donaher of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him, following a jury trial, of murder in the second degree (Penal Law § 125.25 [2] [depraved indifference] ) and criminal possession of a weapon in the second degree (§ 265.03[2] ).   Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction of depraved indifference murder (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   We reject defendant's further contention that the failure of defense counsel to move to dismiss that count on the ground that the conduct was intentional and not reckless, thereby failing to preserve that issue for our review, constitutes ineffective assistance of counsel.   Defendant testified that he did not shoot the victim, but rather that his companion shot the victim.   Thus, defendant has failed to “ ‘demonstrate the absence of strategic or other legitimate explanations' for counsel's allegedly deficient conduct,” and thus has failed to establish that he was denied meaningful representation (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213).

 Defendant further contends that County Court erred in admitting the testimony of a detective that improperly bolstered evidence identifying defendant as the shooter.   Even assuming, arguendo, that the court erred in admitting that testimony, we conclude that the error is harmless.   The evidence of defendant's guilt is overwhelming, and there is no significant probability that the jury would have acquitted defendant but for the alleged error (see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

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

MEMORANDUM: