Opinion
KA 02-01945.
November 19, 2004.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.), rendered August 12, 2002. The judgment convicted defendant, upon a jury verdict, of murder in the second degree and attempted robbery in the first degree.
Before: Pigott, Jr., P.J., Green, Kehoe, Gorski and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25) and attempted robbery in the first degree (§§ 110.00, 160.15 [2]), defendant contends that he was denied effective assistance of counsel. We reject that contention ( see generally People v. Benevento, 91 NY2d 708, 712-713; People v. Baldi, 54 NY2d 137, 147). Defendant's contention is based in part on defense counsel's failure to object when the prosecutor elicited testimony from a detective concerning a recorded telephone conversation that he had with a person who did not testify at trial. That testimony established that defendant made no admissions to the murder during the recorded telephone conversation, a fact that defense counsel brought out extensively on his cross-examination of the detective, and thus the detective's testimony "did not imply that a nontestifying [person] had implicated defendant" ( People v. Severino, 309 AD2d 571, 571, lv denied 1 NY3d 580). In order to establish ineffective assistance of counsel, "`it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations' for counsel's alleged shortcomings" ( Benevento, 91 NY2d at 712), and defendant failed to do so here. The remaining contention of defendant with respect to his alleged denial of effective assistance of counsel is equally without merit.