| People v Collado |
| 2011 NY Slip Op 08951 [90 AD3d 672] |
| December 6, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v EldinCollado, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Anastasia Spanakos of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.),rendered January 5, 2010, convicting him of robbery in the first degree, menacing in the seconddegree (three counts), and criminal possession of a weapon in the fourth degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
"The right to effective assistance of counsel is guaranteed by the Federal and StateConstitutions" (People v Rivera, 71 NY2d 705, 708 [1988]; see US Const SixthAmend; NY Const, art I, § 6; People v Bowles, 89 AD3d 171 [2d Dept 2011])."However, what constitutes effective assistance is not and cannot be fixed with precision, butvaries according to the particular circumstances of each case" (People v Rivera, 71 NY2dat 708). Under the New York Constitution, "[s]o long as the evidence, the law, and thecircumstances of a particular case, viewed in totality and as of the time of the representation,reveal that the attorney provided meaningful representation, the constitutional requirement willhave been met" (People v Baldi, 54 NY2d 137, 146-147 [1981]; see People vBenevento, 91 NY2d 708, 712 [1998]; People v Bowles, 89 AD3d 171 [2011])."While the inquiry focuses on the quality of the representation provided to the accused, the claimof ineffectiveness is ultimately concerned with the fairness of the process as a whole rather thanits particular impact on the outcome of the case" (People v Benevento, 91 NY2d at 714).Thus, "[i]solated errors in counsel's representation generally will not rise to the level ofineffectiveness, unless the error is so serious that defendant did not receive a fair trial"(People v Henry, 95 NY2d 563, 565-566 [2000] [internal quotation marks omitted]; see People v Gavalo, 87 AD3d1014 [2011]). Here, the defendant was not deprived of the effective assistance of counselsince, viewed in totality, defense counsel provided meaningful representation (see People vBenevento, 91 NY2d at 712; People v Baldi, 54 NY2d at 147). Further, the defendantwas not deprived of the effective assistance of counsel under the Federal Constitution (seeStrickland v Washington, 466 US 668 [1984]).
The defendant contends that the Supreme Court erred in permitting the People to elicittestimony that two witnesses to the crime had participated in a showup identification, duringwhich they did not identify the detained suspect as the perpetrator of the robbery, and that the[*2]prosecutor improperly suggested during summation that twoother witnesses participated in the showup identification. These claims are unpreserved forappellate review. Nonetheless, we reach the issues in the exercise of our interest of justicejurisdiction.
Where "the reliability of an eyewitness identification" is at issue, negative identificationevidence, showing that a witness did not identify a suspect as the perpetrator, is admissiblebecause it " 'can tend to prove that the eyewitness possessed the ability to distinguish theparticular features of the perpetrator' " (People v Wilder, 93 NY2d 352, 356-357 [1999],quoting People v Bolden, 58 NY2d 741, 744 [1982] [Gabrielli, J., concurring]). Here,neither of the two witnesses who participated in the showup identification identified thedefendant before or at trial. As such, no eyewitness identification of the perpetrator given bythem was at issue, and it was irrelevant whether they " 'possessed the ability to distinguish theparticular features of the perpetrator' " (People v Wilder, 93 NY2d at 356, quotingPeople v Bolden, 58 NY2d at 744). It was, therefore, error to permit the People to elicitthe challenged negative identification testimony. In addition, the prosecutor improperly suggestedduring summation that two other witnesses, who did identify the defendant in a lineup and attrial, participated in the showup identification.
Nonetheless, these errors were harmless. The People presented testimony from the twoeyewitnesses to the incident, who separately identified the defendant in a lineup and at trial, andhad ample opportunity to view him at the time of the robbery. Under the circumstances, therewas overwhelming evidence of the defendant's guilt, and no significant probability that the errorscontributed to his convictions (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).Skelos, J.P., Hall, Lott and Cohen, JJ., concur.