| People v Elamin |
| 2011 NY Slip Op 02249 [82 AD3d 1664] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RobertElamin, Appellant. |
—[*1]
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered July 17, 2009. The judgment convicted defendant, upon a nonjury verdict, ofunauthorized use of a vehicle in the third degree.
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 ofunauthorized use of a vehicle in the third degree (Penal Law § 165.05 [1]). Defendantfailed to preserve for our review his contention that the evidence is legally insufficient to supportthe conviction (see People v Gray, 86 NY2d 10, 19 [1995]) and, in any event, thatcontention is without merit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).The victim identified defendant at trial as one of the two men who were using his vehicle. Apolice officer testified that he observed a vehicle matching the description of the victim's vehicleand, when he attempted to pull it over, two men fled from the vehicle and abandoned it. Anotherofficer located defendant, who matched the description of one of the men who fled from thevictim's vehicle, in proximity thereto. Viewing the evidence in light of the elements of the crimein this nonjury trial (see People vDanielson, 9 NY3d 342, 349 [2007]), we reject defendant's further contention that theverdict is against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant contends that he received ineffective assistance of counsel because defensecounsel failed to argue at the Wade hearing that the detention of defendant for purposesof a photo array was unlawful pursuant to People v Hicks (68 NY2d 234 [1986]). Wereject that contention. " '[I]t is incumbent on defendant to demonstrate the absence of strategic orother legitimate explanations' for [defense] counsel's alleged shortcomings" (People vBenevento, 91 NY2d 708, 712 [1998], quoting People v Rivera, 71 NY2d 705, 709[1988]; see People v Gregory, 72AD3d 1522 [2010], lv denied 15 NY3d 805), and defendant failed to meet thatburden. The officer who detained defendant after locating him in proximity to the victim'svehicle testified at the Wade hearing that defendant was transported to the police stationfor purposes of conducting a photo array with the victim within only a few minutes of beingdetained. That [*2]testimony established that the length of thedetention was minimal and lawful (see Hicks, 68 NY2d at 243; People v Dibble, 43 AD3d 1363,1364-1365 [2007], lv denied 9 NY3d 1032 [2008]). When the officer subsequentlytestified at trial that she was mistaken in her testimony at the Wade hearing and that thedetention of defendant prior to the photo array lasted approximately one hour, defense counselcould have moved to reopen the Wade hearing (see generally People v Bryant, 43 AD3d 1377, 1378 [2007], lvdenied 9 NY3d 1031 [2008]; People v Walker, 269 AD2d 843 [2000], lvdenied 94 NY2d 953 [2000]). Defendant, however, failed to establish that there was nolegitimate explanation for defense counsel's failure to do so (see People v Waliyuddin,286 AD2d 915 [2001], lv denied 97 NY2d 659 [2001]). Indeed, we note that, at areopened Wade hearing, the People could have called the victim to testify to establishthat he had an independent basis for his in-court identification of defendant (see People v Hill, 53 AD3d 1151[2008]; see generally People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498US 833 [1990]). Viewing the evidence, the law and the circumstances of this case, in totality andas of the time of the representation, we conclude that defendant received meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
We have considered defendant's remaining contentions and conclude that they are withoutmerit. Present—Scudder, P.J., Centra, Sconiers, Gorski and Martoche, JJ.