Opinion
5965–5966 Ind. 4277/11
03-13-2018
The PEOPLE of the State of New York, Respondent, v. Gregory SMITH, Defendant–Appellant.
Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jeffrey A. Wojcik of counsel), for respondent.
Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jeffrey A. Wojcik of counsel), for respondent.
Friedman, J.P., Andrias, Singh, Moulton, JJ.
Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered January 28, 2014, convicting defendant, after a jury trial, of two counts of robbery in the second degree, and sentencing him, as a second violent felony offender, to concurrent terms of 15 years, and order (same court and Justice), entered on or about February 28, 2017, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.
The record, as expanded by way of the CPL 440.10 motion, establishes that defendant received effective assistance of counsel under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). Under the circumstances of this case, it was objectively reasonable for trial counsel to concede that defendant was present during the robbery, and instead assert the defense that defendant did not act in concert with the separately tried codefendant (see People v. Lemma, 273 A.D.2d 180, 181, 711 N.Y.S.2d 3 [1st Dept. 2000]lv denied 95 N.Y.2d 906, 716 N.Y.S.2d 647, 739 N.E.2d 1152 [2000] ).
As trial counsel explained in connection with the 440.10 motion, he evaluated the evidence, including a surveillance videotape, and reached the conclusion that the best defense was that defendant was not accessorially liable for the robbery, notwithstanding his presence at the scene. Furthermore, he selected this defense in consultation with defendant (see People v. Clark, 28 N.Y.3d 556, 562–563, 46 N.Y.S.3d 817, 69 N.E.3d 604 [2016] ), who had always insisted that he was present but did not assist the codefendant.
Given this choice of defenses, evidence tending to establish the uncontested element of identity was not damaging. Accordingly, defendant was not prejudiced by any of counsel's alleged deficiencies in his handling of suppression issues. Furthermore, given the circumstantial evidence, defendant has not shown that even if counsel had prevented the introduction of certain identification and physical evidence, he could have obtained a dismissal or acquittal based on lack of evidence of identity.We perceive no basis for reducing the sentence.