| People v Atkins |
| 2013 NY Slip Op 04195 [107 AD3d 1465] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v UkiahR. Atkins, Respondent, Also Known as "K," Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department, from an order of the Monroe County Court (Frank P.Geraci, Jr., J.), entered April 30, 2009. The order denied the motion of defendant tovacate the judgment of conviction pursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted following a jury trial of murder in thesecond degree (Penal Law § 125.25 [1]), and the judgment of conviction wasaffirmed on appeal (People vAtkins, 39 AD3d 1230 [2007], lv denied 9 NY3d 872 [2007]).Defendant thereafter moved pursuant to CPL 440.10 to vacate the judgment.After that motion was summarily denied, we granted his CPL 460.15 application fora certificate granting leave to appeal.
We reject defendant's contention that he was denied effective assistance of counsel attrial. "To prevail on a claim of ineffective assistance of counsel, it is incumbent ondefendant to demonstrate the absence of strategic or other legitimate explanations" fordefense counsel's allegedly deficient conduct (People v Rivera, 71 NY2d 705,709 [1988]; see People v Benevento, 91 NY2d 708, 712 [1998]). "A single errormay qualify as ineffective assistance, but only when the error is sufficiently egregiousand prejudicial as to compromise a defendant's right to a fair trial" (People v Caban, 5 NY3d143, 152 [2005]). Here, "[trial counsel's] decision not to use an alibi defense, whichthe District Attorney was prepared to rebut, was a matter of trial strategy and cannot becharacterized as ineffective assistance of counsel" (People v Villone, 138 AD2d971, 971 [1988], lv denied 72 NY2d 913 [1988]). Additionally, defendant failedto demonstrate that the decision of his trial counsel not to use an alibi defense was"prejudicial to him" (People v Barber, 202 AD2d 978, 979 [1994], lvdenied 83 NY2d 908 [1994], citing People v Ford, 46 NY2d 1021, 1023[1979]). Contrary to defendant's further contention, he was not entitled to a hearingpursuant to CPL 440.30 (5) inasmuch as his factual contentions concerning trial counsel'salleged deficiencies are unsupported by "any other affidavit or evidence" and, under thecircumstances of this case, there is "no reasonable possibility that [defendant's]allegation[s are] true" (CPL 440.30 [4] [d]). Present—Smith, J.P., Fahey, Carni,Valentino and Whalen, JJ.