| People v Webster |
| 2008 NY Slip Op 08942 [56 AD3d 1242] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JamesWebster, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), renderedDecember 6, 2006. The judgment convicted defendant, after a nonjury trial, of attempted robberyin the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trialof attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [4]). Wereject the contention of defendant that he was denied effective assistance of counsel. Defendantfailed "to demonstrate the absence of strategic or other legitimate explanations" for the failure ofdefense counsel to pursue a Huntley or a Ventimiglia hearing, or to object to theadmission of defendant's statements at trial (People v Rivera, 71 NY2d 705, 709 [1988];see People v Kirkey, 248 AD2d 979, 980 [1998], lv denied 92 NY2d 900[1998]; see generally People v Jackson, 172 AD2d 874, 875 [1991], lv denied 78NY2d 923 [1991]). "With respect to the failure to request a Sandoval ruling, we note that[County] Court in this nonjury trial is presumed to have evaluated the evidence [of defendant'spast criminal conduct] only for the purpose of impeaching . . . defendant'scredibility and not as evidence of guilt of the crime charged" (People v Maryon, 20 AD3d911, 912-913 [2005], lv denied 5 NY3d 854 [2005] [internal quotation marks omitted]).In addition, defense counsel's alleged error in failing to make an opening statement is"attributable to or substantially ameliorated by the fact that defendant elected to waive a jurytrial" (id. at 913). In sum, viewing the evidence, the law and the circumstances of thiscase, in totality and as of the time of the representation, we conclude that defendant receivedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Present—Hurlbutt, J.P., Smith, Green, Pine and Gorski, JJ.