Opinion
978 KA 18-01959
03-24-2023
The PEOPLE of the State of New York, Respondent, v. Dwayne C. HENDRICKS, Defendant-Appellant.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CURRAN, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of robbery in the first degree ( Penal Law § 160.15 [3] ). Defendant contends that County Court erred in admitting certain of his statements in evidence inasmuch as those statements were hearsay and did not qualify as admissions because they were exculpatory in nature. That contention is unpreserved for our review (see CPL 470.05 [2] ) and, in any event, is without merit. Even assuming, arguendo, that the statements constituted hearsay, we conclude that they were properly admitted as "inconsistent with innocence" ( People v. Ward , 107 A.D.3d 1605, 1605, 966 N.Y.S.2d 805 [4th Dept. 2013], lv denied 21 N.Y.3d 1078, 974 N.Y.S.2d 327, 997 N.E.2d 152 [2013] [internal quotation marks omitted]), "inconsistent with [defendant's] position on trial" ( People v. Jackson , 29 A.D.3d 409, 412, 814 N.Y.S.2d 627 [1st Dept. 2006], affd 8 N.Y.3d 869, 832 N.Y.S.2d 477, 864 N.E.2d 607 [2007] [internal quotation marks omitted]), and as "evidence that defendant has given a false alibi" ( People v. Thomas , 300 A.D.2d 1034, 1035, 752 N.Y.S.2d 482 [4th Dept. 2002], lv denied 99 N.Y.2d 633, 760 N.Y.S.2d 114, 790 N.E.2d 288 [2003] ; see People v. Leyra , 1 N.Y.2d 199, 208, 151 N.Y.S.2d 658, 134 N.E.2d 475 [1956] ; see also People v. Ficarrota , 91 N.Y.2d 244, 250, 668 N.Y.S.2d 993, 691 N.E.2d 1017 [1997] ). Inasmuch as the statements were properly admissible, we reject defendant's related contention that defense counsel was ineffective in failing to object to them (see People v. Sampson , 184 A.D.3d 1123, 1125, 125 N.Y.S.3d 808 [4th Dept. 2020], lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 290, 155 N.E.3d 783 [2020] ).
With respect to defendant's remaining claims of ineffective assistance of counsel, defendant has failed to establish "the absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct" ( People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] [internal quotation marks omitted]; see People v. Jones , 155 A.D.3d 1547, 1549, 64 N.Y.S.3d 803 [4th Dept. 2017], amended on rearg 156 A.D.3d 1493, 65 N.Y.S.3d 820 [4th Dept. 2017], lv denied 32 N.Y.3d 1205, 99 N.Y.S.3d 205, 122 N.E.3d 1118 [2019] ; People v. Loret , 56 A.D.3d 1283, 1283, 867 N.Y.S.2d 649 [4th Dept. 2008], lv denied 11 N.Y.3d 927, 874 N.Y.S.2d 12, 902 N.E.2d 446 [2009] ). Viewing the evidence, the law, and the circumstances of this case in totality and as of the time of representation, we conclude that defense counsel provided defendant with meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
To the extent that defendant contends that he was penalized for exercising his right to a trial, that contention is not preserved for our review (see People v. Hurley , 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017 [1990] ; People v. Fudge , 104 A.D.3d 1169, 1170, 960 N.Y.S.2d 792 [4th Dept. 2013], lv denied 21 N.Y.3d 1042, 972 N.Y.S.2d 539, 995 N.E.2d 855 [2013] ). Defendant's sentence is not unduly harsh or severe.