Opinion
11-01-2017
The PEOPLE, etc., Respondent, v. David MENDOZA, Appellant.
Paul Skip Laisure, New York, NY (Caitlin Halpern of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Amy Appelbaum, and Megan E. Farrell of counsel), for respondent.
Paul Skip Laisure, New York, NY (Caitlin Halpern of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Amy Appelbaum, and Megan E. Farrell of counsel), for respondent.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mondo, J.), rendered January 14, 2016, convicting him of burglary in the second degree (two counts) and petit larceny (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt with respect to the two counts of burglary in the second degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that he was deprived of the effective assistance of counsel is without merit. "[W]hen reviewing claims of ineffective assistance of counsel, care must be taken to avoid confusing true ineffectiveness with mere losing tactics. The performance of counsel must be viewed without the benefit of hindsight, and if counsel provided meaningful representation in the context of the evidence, the law, and the circumstances of the particular case, the constitutional requirement will have been met" ( People v. Ramirez, 146 A.D.3d 987, 45 N.Y.S.3d 568 [internal quotation marks omitted]; see People v. Satterfield, 66 N.Y.2d 796, 798–799, 497 N.Y.S.2d 903, 488 N.E.2d 834 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). "[I]t is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings.... As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance" ( People v. Benevento, 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584 [citations and internal quotation marks omitted] ). Here, defense counsel pursued a reasonable strategy and provided meaningful representation (see People v. Taylor, 1 N.Y.3d 174, 770 N.Y.S.2d 711, 802 N.E.2d 1109 ; People v. Benevento, 91 N.Y.2d at 714, 674 N.Y.S.2d 629, 697 N.E.2d 584 ).
The defendant contends that certain remarks made by the prosecutor during summation deprived him of a fair trial. This contention is largely unpreserved for appellate review (see CPL 470.05[2] ; People v. Barcero, 116 A.D.3d 1060, 1061, 984 N.Y.S.2d 419 ). In any event, this contention is without merit, as the prosecutor's remarks were permissible rhetorical comment, responsive to defense counsel's summation, or fair comment on the evidence (see People v. Collins, 135 A.D.3d 783, 783, 22 N.Y.S.3d 882 ; People v. Willis, 122 A.D.3d 950, 950–951, 997 N.Y.S.2d 472 ; People v. Barcero, 116 A.D.3d at 1061, 984 N.Y.S.2d 419 ).