Opinion
2618.
Decided December 30, 2003.
Judgment, Supreme Court, Bronx County (Robert Straus, J.), rendered January 8, 2001, convicting defendant, after a jury trial, of robbery in the first degree, robbery in the second degree (two counts) and burglary in the first degree (two counts), and sentencing him, as a second violent felony offender, to an aggregate term of 18 years, unanimously affirmed.
David S. Weisel, for Respondent.
Nancy Little, for Defendant-Appellant.
Before: Buckley, P.J., Andrias, Sullivan, Friedman, Gonzalez, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning identification and credibility, including its evaluation of the witnesses' inability to make in-court identifications ( see People v. Fratello, 92 N.Y.2d 565, 572-572, cert denied 526 U.S. 1068). Moreover, the fingerprint evidence, standing alone, established defendant's guilt beyond a reasonable doubt, notwithstanding his far-fetched theory as to how he may have innocently left his fingerprint on a crutch that was used to beat one of the victims ( see People v. Steele, 287 A.D.2d 321, 322, lv denied 97 N.Y.2d 682; Taylor v. Stainer, 31 F.3d 907, 910).
Defendant's claim that the prosecution failed to lay a proper foundation for the admission of the witnesses' lineup identifications ( see CPL 60.25[a][iii]) is unpreserved and we decline to review it in the interest of justice. Defendant has not established that counsel's failure to raise this issue constituted ineffective assistance ( see People v. Benevento, 91 N.Y.2d 708, 713-714; see also Strickland v. Washington, 466 U.S. 668). Since counsel made affirmative use of the lineup identifications, coupled with the witnesses' purported disavowals thereof, defendant has not shown "the absence of strategic or other legitimate explanations" for counsel's conduct ( People v. Rivera, 71 N.Y.2d 705, 709). In any event, were we to find that counsel's failure to object was not strategic, we would find that the error did not deprive defendant of a fair trial ( see People v. Hobot, 84 N.Y.2d 1021, 1024).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.