Opinion
932 KA 16–01594
11-08-2019
The PEOPLE of the State of New York, Respondent, v. Tammy HINES, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DIANNE C. RUSSELL OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DIANNE C. RUSSELL OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her, upon a jury verdict, of grand larceny in the fourth degree ( Penal Law § 155.30 [1 ] ), defendant contends that she was denied effective assistance of counsel. We reject that contention. Defense counsel's failure to request a Huntley hearing, without more, does not constitute a basis for finding ineffectiveness (see People v. Williams , 140 A.D.2d 969, 970, 529 N.Y.S.2d 645 [4th Dept. 1988] ; see also People v. Brown , 122 A.D.2d 546, 546, 505 N.Y.S.2d 474 [4th Dept. 1986], lv denied 68 N.Y.2d 810, 507 N.Y.S.2d 1027, 499 N.E.2d 876 [1986] ). In addition, defendant was not deprived of effective assistance of counsel based on defense counsel's failure to pursue a Wade hearing. Defendant failed to "demonstrate the absence of strategic or other legitimate explanations for [that] failure" ( People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ), particularly inasmuch as defendant's identity was established at trial directly through video surveillance evidence and, moreover, there is no indication in the record that defendant was identified in a pretrial identification arranged by the police (see People v. Pace , 70 A.D.3d 1364, 1366, 894 N.Y.S.2d 284 [4th Dept. 2010], lv denied 14 N.Y.3d 891, 903 N.Y.S.2d 779, 929 N.E.2d 1014 [2010] ).
Although we agree with defendant that there is no basis in the record to conclude that the loss prevention officers who gave testimony identifying defendant as an individual depicted in the surveillance video were more likely to correctly identify defendant from the video than the jury (cf. People v. Brown , 145 A.D.3d 1549, 1549, 46 N.Y.S.3d 317 [4th Dept. 2016], lv denied 29 N.Y.3d 947, 54 N.Y.S.3d 378, 76 N.E.3d 1081 [2017] ; People v. Sampson , 289 A.D.2d 1022, 1023, 735 N.Y.S.2d 283 [4th Dept. 2001], lv. denied 97 N.Y.2d 733, 740 N.Y.S.2d 706, 767 N.E.2d 163 [2002] ), we further conclude that defendant failed to "demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcoming[ ]" in failing to object to the admission of that testimony ( People v. Hogan , 26 N.Y.3d 779, 785, 28 N.Y.S.3d 1, 48 N.E.3d 58 [2016] [internal quotation marks omitted]; see People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ).
Finally, with respect to defendant's remaining allegations of ineffective assistance of counsel, we note that the constitutional right to effective assistance of counsel "does not guarantee a perfect trial, but assures the defendant a fair trial" ( People v. Flores , 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19 [1994] ; see People v. Ford , 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ). Having examined the record before us, we conclude that "the evidence, the law, and the circumstances of [this] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" ( People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).