Opinion
2011-12-6
The PEOPLE, etc., respondent, v. Eldin COLLADO, appellant.
Lynn W.L. Fahey, New York, N.Y. (Jessica M. McNamara of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Jessica M. McNamara of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel), for respondent.
PETER B. SKELOS, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered January 5, 2010, convicting him of robbery in the first degree, menacing in the second degree (three counts), and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
“The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions” ( People v. Rivera, 71 N.Y.2d 705, 708, 530 N.Y.S.2d 52, 525 N.E.2d 698; see U.S. Const. Sixth Amend.; N.Y. Const., art. I, § 6; People v. Bowles, ––– A.D.3d ––––, 932 N.Y.S.2d 112). “However, what constitutes effective assistance is not and cannot be fixed with precision, but varies according to the particular circumstances of each case” ( People v. Rivera, 71 N.Y.2d at 708, 530 N.Y.S.2d 52, 525 N.E.2d 698). Under the New York Constitution, “[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met” ( People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400; see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Bowles, ––– A.D.3d ––––, 932 N.Y.S.2d 112). “While the inquiry focuses on the quality of the representation provided to the accused, the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case” ( People v. Benevento, 91 N.Y.2d at 714, 674 N.Y.S.2d 629, 697 N.E.2d 584). Thus, “[i]solated errors in counsel's representation generally will not rise to the level of ineffectiveness, unless the error is so serious that defendant did not receive a fair trial” ( People v. Henry, 95 N.Y.2d 563, 565–566, 721 N.Y.S.2d 577, 744 N.E.2d 112 [internal quotation marks omitted]; see People v. Gavalo, 87 A.D.3d 1014, 929 N.Y.S.2d 321). Here, the defendant was not deprived of the effective assistance of counsel since, viewed in totality, defense counsel provided meaningful representation ( see People v. Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Baldi, 54 N.Y.2d at 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). Further, the defendant was not deprived of the effective assistance of counsel under the Federal Constitution ( see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674).
The defendant contends that the Supreme Court erred in permitting the People to elicit testimony that two witnesses to the crime had participated in a showup identification, during which they did not identify the detained suspect as the perpetrator of the robbery, and that the prosecutor improperly suggested during summation that two other witnesses participated in the showup identification. These claims are unpreserved for appellate review. Nonetheless, we reach the issues in the exercise of our interest of justice jurisdiction.
Where “the reliability of an eyewitness identification” is at issue, negative identification evidence, showing that a witness did not identify a suspect as the perpetrator, is admissible because it “ ‘can tend to prove that the eyewitness possessed the ability to distinguish the particular features of the perpetrator’ ” ( People v. Wilder, 93 N.Y.2d 352, 356–357, 690 N.Y.S.2d 483, 712 N.E.2d 652, quoting People v. Bolden, 58 N.Y.2d 741, 744, 459 N.Y.S.2d 22, 445 N.E.2d 198 [Gabrielli, J., concurring] ). Here, neither of the two witnesses who participated in the showup identification identified the defendant before or at trial. As such, no eyewitness identification of the perpetrator given by them was at issue, and it was irrelevant whether they “ ‘possessed the ability to distinguish the particular features of the perpetrator’ ” ( People v. Wilder, 93 N.Y.2d at 356, 690 N.Y.S.2d 483, 712 N.E.2d 652, quoting People v. Bolden, 58 N.Y.2d at 744, 459 N.Y.S.2d 22, 445 N.E.2d 198). It was, therefore, error to permit the People to elicit the challenged negative identification testimony. In addition, the prosecutor improperly suggested during summation that two other witnesses, who did identify the defendant in a lineup and at trial, participated in the showup identification.
Nonetheless, these errors were harmless. The People presented testimony from the two eyewitnesses to the incident, who separately identified the defendant in a lineup and at trial, and had ample opportunity to view him at the time of the robbery. Under the circumstances, there was overwhelming evidence of the defendant's guilt, and no significant probability that the errors contributed to his convictions ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).