| People v Robles |
| 2014 NY Slip Op 02960 [116 AD3d 1071] |
| April 30, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Robles, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, ThomasM. Ross, and Meredith Sherman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Gary, J.), rendered February 1, 2012, convicting him of grand larceny in the thirddegree, operating a motor vehicle without headlights, and driving without a safety belt,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's claim that his trial counsel's failure to move to reopen aWade (see United States v Wade, 388 US 218 [1967]) hearingconstituted ineffective assistance of counsel is without merit. Where an ineffectiveassistance claim is based upon a particular error in counsel's performance, the defendantmust demonstrate the absence of strategic or otherwise legitimate explanations forcounsel's allegedly deficient conduct (see People v Baugh, 91 AD3d 965 [2012]; People v Koki, 74 AD3d987 [2010]). The defendant here failed to establish that there was no legitimateexplanation for defense counsel's failure to move to reopen the Wade hearingbased on the complainant's testimony at trial (see People v Baugh, 91 AD3d 965 [2012]; People v Elamin, 82 AD3d1664 [2011]). Under the circumstances of this case, counsel could reasonably haveconcluded that a motion to reopen the hearing would have been futile (see People v Whaley, 70 AD3d570 [2010]; see also Peoplev Underdue, 89 AD3d 1132 [2011]). Counsel is not ineffective for failing tomake a motion that is unlikely to succeed (see People v Garris, 99 AD3d 1018 [2012]; People v Cromwell, 99 AD3d1017 [2012]). Furthermore, even if a motion to reopen the Wade hearing hadbeen made, and granted, the record shows that a reopened hearing would not haveresulted in a different ruling (see People v Evans, 16 NY3d 571, 576 [2011], certdenied 565 US —, 132 S Ct 325 [2011]; People v Charles, 152 AD2d593 [1989]). The evidence and the law, viewed in totality and as of the time ofrepresentation, reveal that trial counsel provided meaningful representation (seePeople v Baldi, 54 NY2d 137, 147 [1981]).
Contrary to the defendant's contention, the Supreme Court's admonitions to defensecounsel to confine her opening statement to what she intended to prove did not shift theburden of proof. The court thoroughly instructed the jury that the defense did not have tomake an opening statement, that the burden of proof remained with the People, and thatthe defendant had no burden (see People v Clanton, 19 AD3d 177 [2005]; People vOrr, 267 AD2d 177 [1999]; People v Feliciano, 254 AD2d 496 [1998];People v Rodriguez, 228 AD2d 234 [1996]; People v Concepcion, 228AD2d 204 [1996]). Furthermore, the court's comments did not prevent defense counselfrom completing her opening statement, or overly restrict her opening statement (see People v Clanton, 19AD3d 177 [2005]; People v Concepcion, 228 AD2d 204 [1996]; Peoplev Fabian, 213 AD2d 298 [1995]). Under the circumstances of this case, there is norealistic view that the court's remarks could be interpreted so as to skew the burden ofproof (see People v Dukes, 236 AD2d 484 [1997]; People v Concepcion,228 AD2d 204 [1996]). The court's remarks were brief, isolated, and innocuous incontext (see People v Fabian, 213 AD2d 298 [1995]). Dillon, J.P., Hall, Cohenand Hinds-Radix, JJ., concur.