| People v Holmes |
| 2008 NY Slip Op 00711 [47 AD3d 946] |
| January 29, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Tremain Holmes, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, andHelen M. Polyzos of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.),rendered March 8, 2005, convicting him of criminal possession of a weapon in the third degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that he was prejudicedby the admission of hearsay testimony of an uncharged crime and by the prosecutor's commentsupon that evidence during summation (see CPL 470.05 [2]; People v Tonge, 93NY2d 838, 839-840 [1999]; People vMontalvo, 34 AD3d 600, 601 [2006]). In any event, the defendant does not contest, onappeal, the trial court's ruling allowing the prosecutor to elicit evidence of an uncharged crimepursuant to People v Molineux (168 NY 264 [1901]), and he waived his contention thatthe uncharged crime was improperly proved through the hearsay testimony of two witnesses byaffirmatively using that evidence in his cross-examination of those witnesses and in summationas part of his defense strategy (seePeople v Blackman, 13 AD3d 640, 641 [2004]; People v Spragis, 5 AD3d 814, 815 [2004]). Moreover, theprosecutor's remarks in summation were either fair comment on the evidence, responsive todefense arguments, or otherwise remained within the "broad bounds of rhetorical commentpermissible in closing argument" (People v Galloway, 54 NY2d 396, 399 [1981]; see People v Dorgan, 42 AD3d505 [2007]; People vMontalvo, 34 AD3d 600, 601 [2006]).
The defendant's contention that he was denied the effective assistance of trial counsel is[*2]without merit. To prevail on a claim of ineffective assistanceof counsel, the defendant must demonstrate his attorney's failure to provide meaningfulrepresentation, and the absence of strategic or other legitimate explanations for his counsel'sallegedly deficient conduct (see People vCaban, 5 NY3d 143, 152 [2005]). The record reflects that, under the circumstances andin light of the People's case, the defendant's trial counsel pursued a logical defense strategy whichincluded his affirmative use of the uncharged crime evidence, and that he was successful inobtaining an acquittal on the higher count charging criminal possession of a weapon in thesecond degree. Considering the record as whole, the defense counsel provided meaningfulrepresentation (see People v Corie, 222 AD2d 602, 602-603 [1995]).
The defendant's remaining contentions either are unpreserved for appellate review or arewithout merit. Santucci, J.P., Lifson, Covello and Angiolillo, JJ., concur.