THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ROBERT ELAMIN DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ROBERT ELAMIN, DEFENDANT-APPELLANT.

KA 09-01893

Decided: March 25, 2011

PRESENT:  SCUDDER, P.J., CENTRA, SCONIERS, GORSKI, AND MARTOCHE, JJ. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHELLE L. CIANCIOSA OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a nonjury verdict of unauthorized use of a vehicle in the third degree (Penal Law § 165.05[1] ).   Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v. Gray, 86 N.Y.2d 10, 19) and, in any event, that contention is without merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   The victim identified defendant at trial as one of the two men who were using his vehicle.   A police officer testified that he observed a vehicle matching the description of the victim's vehicle and, when he attempted to pull it over, two men fled from the vehicle and abandoned it.   Another officer located defendant, who matched the description of one of the men who fled from the victim's vehicle, in proximity thereto.   Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson, 9 NY3d 342, 349), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).

Defendant contends that he received ineffective assistance of counsel because defense counsel failed to argue at the Wade hearing that the detention of defendant for purposes of a photo array was unlawful pursuant to People v. Hicks (68 N.Y.2d 234).   We reject that contention.  “ ‘[I]t is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations' for [defense] counsel's alleged shortcomings” (People v. Benevento, 91 N.Y.2d 708, 712, quoting People v. Rivera, 71 N.Y.2d 705, 709;  see People v. Gregory, 72 AD3d 1522, lv denied 15 NY3d 805), and defendant failed to meet that burden.   The officer who detained defendant after locating him in proximity to the victim's vehicle testified at the Wade hearing that defendant was transported to the police station for purposes of conducting a photo array with the victim within only a few minutes of being detained.   That testimony established that the length of the detention was minimal and lawful (see Hicks, 68 N.Y.2d at 243;  People v. Dibble, 43 AD3d 1363, 1364-1365, lv denied 9 NY3d 1032).   When the officer subsequently testified at trial that she was mistaken in her testimony at the Wade hearing and that the detention of defendant prior to the photo array lasted approximately one hour, defense counsel could have moved to reopen the Wade hearing (see generally People v. Bryant, 43 AD3d 1377, 1378, lv denied 9 NY3d 1031;  People v. Walker, 269 A.D.2d 843, lv denied 94 N.Y.2d 953).   Defendant, however, failed to establish that there was no legitimate explanation for defense counsel's failure to do so (see People v. Waliyuddin, 286 A.D.2d 915, lv denied 97 N.Y.2d 659).   Indeed, we note that, at a reopened Wade hearing, the People could have called the victim to testify to establish that he had an independent basis for his in-court identification of defendant (see People v. Hill, 53 AD3d 1151;  see generally People v. Chipp, 75 N.Y.2d 327, 335, cert denied 498 U.S. 833).   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).

We have considered defendant's remaining contentions and conclude that they are without merit.

Patricia L. Morgan

Clerk of the Court