| People v Mendoza |
| 2017 NY Slip Op 07617 [155 AD3d 652] |
| November 1, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v David Mendoza, Appellant. |
Paul Skip Laisure, New York, NY (Caitlin Halpern of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Amy Appelbaum,and Megan E. Farrell of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mondo, J.),rendered January 14, 2016, convicting him of burglary in the second degree (two counts) andpetit larceny (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt with respect to the two counts of burglary in the second degree was notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant's contention that he was deprived of the effective assistance of counsel iswithout merit. "[W]hen reviewing claims of ineffective assistance of counsel, care must be takento avoid confusing true ineffectiveness with mere losing tactics. The performance of counselmust be viewed without the benefit of hindsight and if counsel provided meaningfulrepresentation in the context of the evidence, the law, and the circumstances of the particularcase, the constitutional requirement will have been met" (People v Ramirez, 146 AD3d 987, 987 [2017] [internal quotationmarks omitted]; see People v Satterfield, 66 NY2d 796, 798-799 [1985]; People vBaldi, 54 NY2d 137, 147 [1981]). "[I]t is incumbent on defendant to demonstrate theabsence of strategic or other legitimate explanations for counsel's allegedshortcomings. . . . As long as the defense reflects a reasonable and legitimatestrategy under the circumstances and evidence presented, even if unsuccessful, it will not fall tothe level of ineffective assistance" (People v Benevento, 91 NY2d 708, 712-713 [1998][citations and internal quotation marks omitted]). Here, defense counsel pursued a reasonablestrategy and provided meaningful representation (see People v Taylor, 1 NY3d 174 [2003]; People vBenevento, 91 NY2d at 714).
The defendant contends that certain remarks made by the prosecutor during summationdeprived him of a fair trial. This contention is largely unpreserved for appellate review(see CPL 470.05 [2]; People vBarcero, 116 AD3d 1060, 1061 [2014]). In any event, this contention is [*2]without merit, as the prosecutor's remarks were permissiblerhetorical comment, responsive to defense counsel's summation, or fair comment on the evidence(see People v Collins, 135 AD3d783, 783 [2016]; People vWillis, 122 AD3d 950, 950-951 [2014]; People v Barcero, 116 AD3d at 1061).Mastro, J.P., Hall, Austin and Sgroi, JJ., concur.