People v Webb

2012 NY Slip Op 01088 [92 AD3d 1268]

February 10, 2012

Appellate Division, Fourth Department

As corrected through Wednesday, March 28, 2012

The People of the State of New York, Respondent, v Tyrone A.Webb, Appellant.

—[*1]Motion for reargument is granted and, uponreargument, the memorandum and order entered December 23, 2011 (90 AD3d 1563 [2011]) isamended by deleting the last paragraph of the memorandum and substituting the followingparagraph: Defendant further contends that he was denied effective assistance of counsel basedon defense counsel's failure to pursue a suppression hearing on the ground that the police did nothave probable cause to arrest him or reasonable suspici[*2]on todetain him. We reject that contention. " '[I]t is incumbent on defendant to demonstrate theabsence of strategic or other legitimate explanations' for [defense] counsel's allegedshortcomings" (People v Benevento, 91 NY2d 708, 712 [1998], quoting People vRivera, [*3]71 NY2d 705, 709 [1988]). Here, defendantfailed to meet that burden (see People vElamin, 82 AD3d 1664, 1665 [2011], lv denied 17 NY3d 794 [2011]; People v Jacobs, 52 AD3d 1182,1184 [2008], lv denied 11 NY3d 926 [2009]; People v Maryon, 20 AD3d 911, 912 [2005], lv denied 5[*4]NY3d 854 [2005]). Present—Smith, J.P., Fahey, Carniand Sconiers, JJ.