| People v Ramirez |
| 2017 NY Slip Op 00491 [146 AD3d 987] |
| January 25, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Andres Ramirez, Appellant. |
Lynn W. L. Fahey, New York, NY (Samuel Brown of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, and Jonathan V. Brewer of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lopresto, J.), rendered September 15, 2015, convicting him of robbery in the firstdegree, robbery in the second degree, and criminal possession of stolen property in thefifth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that he was deprived of the effective assistance of counsel."[W]hen reviewing claims of ineffective assistance of counsel, care must be taken toavoid confusing true ineffectiveness with mere losing tactics. The performance ofcounsel must be viewed without the benefit of hindsight and if counsel providedmeaningful representation in the context of the evidence, the law, and the circumstancesof the particular case, the constitutional requirement will have been met" (People vButler, 143 AD2d 140, 140-141 [1988]; see People v Satterfield, 66 NY2d796, 798-799 [1985]; People v Baldi, 54 NY2d 137, 147 [1981]). "[I]t isincumbent on defendant to demonstrate the absence of strategic or other legitimateexplanations for counsel's alleged shortcomings. . . . As long as the defensereflects a reasonable and legitimate strategy under the circumstances and evidencepresented, even if unsuccessful, it will not fall to the level of ineffective assistance"(People v Benevento, 91 NY2d 708, 712-713 [1998] [citations and internalquotation marks omitted]).
Here, defense counsel presented a reasonable strategy supporting the defendant'scredibility by explaining the motivations for his actions, delivered a coherent closingstatement consistent with that strategy, effectively cross-examined the prosecution'switnesses, and objected to the prosecutor's questions and proposed exhibits whereappropriate (see People v Baldi, 54 NY2d at 147-152; People v Alexander, 56 AD3d793 [2008]).
The defendant failed to demonstrate the lack of a strategic or other legitimateexplanation for defense counsel's consent to the admission of a certain photograph intoevidence (see People v Benevento, 91 NY2d at 713; People v Gilleo, 70 AD3d1049, 1050 [2010]).
Most of the prosecutor's alleged improper comments during summation were withinthe broad bounds of permissible rhetorical comment, a fair response to the defendant'ssummation, [*2]or fair comment on the evidence and thereasonable inferences to be drawn therefrom (see People v Halm, 81 NY2d 819,821 [1993]; People v Galloway, 54 NY2d 396, 399-400 [1981]). Defensecounsel's failure to object to other remarks made by the prosecutor during summation didnot constitute ineffective assistance of counsel (see People v Benevento, 91NY2d at 713; People vSingh, 138 AD3d 767, 768 [2016]).
Under the circumstances, the defendant was afforded meaningful representation.Austin, J.P., Cohen, Maltese and Duffy, JJ., concur.