| People v Rivera |
| 2013 NY Slip Op 08678 [112 AD3d 1288] |
| December 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vTyquan L. Rivera, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D.Valentino, J.), rendered October 16, 2009. The judgment convicted defendant, upon ajury verdict, of attempted murder in the second degree and assault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him as a juvenileoffender, upon a jury verdict, of attempted murder in the second degree (Penal Law§§ 110.00, 125.25 [1]) and assault in the first degree (§ 120.10 [1]) inthe shooting of a Rochester police officer. We reject defendant's contention that he wasdeprived of effective assistance of counsel based solely on an allegedly prejudicialstatement that defense counsel made during his opening statement concerning a rumorthat the shooting was part of a gang initiation, which defense counsel promptly statedwas baseless. "A single error may qualify as ineffective assistance, but only when theerror is sufficiently egregious and prejudicial as to compromise a defendant's right to afair trial" (People v Caban,5 NY3d 143, 152 [2005]; see People v Atkins, 107 AD3d 1465, 1465 [2013]). Suchan error did not occur here. This was a high publicity case, and defendant has notdemonstrated " 'the absence of strategic or other legitimate explanations' for counsel'salleged shortcoming[ ]" (People v Benevento, 91 NY2d 708, 712 [1998]). Inaddition to contending that the above error by itself warrants reversal, defendant alsocontends that there were other instances of ineffectiveness. We conclude, however, thatthe evidence, the law and the circumstances of this case, viewed in totality and as of thetime of the representation, establish that defendant received meaningful representation(see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Contrary to defendant's further contention, we conclude that the evidence is legallysufficient to support the conviction and, viewing the evidence in light of the elements ofthe crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wefurther conclude that the verdict is not against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). "The fact that no one sawdefendant fire the shot that [injured] the victim does not render the evidence legallyinsufficient, inasmuch as there was ample circumstantial evidence establishingdefendant's identity as the shooter" (People v Moore [appeal No. 2], 78 AD3d1658, 1659 [2010], lv denied 17 NY3d 798 [2011]). Moreover, "[w]here, ashere, defendant's statements could be interpreted as relevant admissions of guilt. . . , there [i]s both direct and circumstantial evidence" [*2]of defendant's guilt (People v Casper, 42 AD3d 887, 888 [2007], lv denied9 NY3d 990 [2007] [internal quotation marks omitted]). Finally, we have considereddefendant's remaining contentions and conclude that none requires reversal ormodification of the judgment. Present—Scudder, P.J., Centra, Carni, Lindley andSconiers, JJ.