Opinion
No. 2019-09016 Ind. No. 460/18
12-04-2024
The People of the State of New York, respondent, v. Shawn Weaver, appellant.
Portale Randazzo LLP, White Plains, NY (Chad Mair of counsel), for appellant. Miriam E. Rocah, District Attorney, White Plains, NY (Virginia A. Marciano and Raffaelina Gianfrancesco of counsel), for respondent.
Portale Randazzo LLP, White Plains, NY (Chad Mair of counsel), for appellant.
Miriam E. Rocah, District Attorney, White Plains, NY (Virginia A. Marciano and Raffaelina Gianfrancesco of counsel), for respondent.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, HELEN VOUTSINAS, LOURDES M. VENTURA, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Susan Cacace, J.), rendered July 9, 2019, convicting him of assault in the first degree, robbery in the first degree, and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt is unpreserved for appellate review (see People v Ramirez, 208 A.D.3d 897, 898, affd 41 N.Y.3d 406; People v Lewis, 189 A.D.3d 887, 889; People v Tebout, 179 A.D.3d 1099, 1100). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, 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, 349), 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; People v Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633, 644).
The defendant contends that he was deprived of the effective assistance of counsel. Under the federal standard, the defendant must demonstrate that counsel's performance "fell below an objective standard of reasonableness" and "that the deficient performance prejudiced the defense" (Strickland v Washington, 466 U.S. 668, 687; see People v Russell, 216 A.D.3d 1111, 1112). Pursuant to the New York standard, "'a court must examine whether the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation'" (People v Alvarenga, 218 A.D.3d 485, 487, quoting People v Sposito, 37 N.Y.3d 1149, 1150; see People v Bryant, 219 A.D.3d 622, 624; People v Russell, 216 A.D.3d at 1112).
The defendant bears the burden of demonstrating the "'absence of strategic or other legitimate explanations for counsel's alleged shortcomings'" (People v Ramirez, 146 A.D.3d 987, 987, quoting People v Benevento, 91 N.Y.2d 708, 712; see People v Gonzalez, 210 A.D.3d 1005, 1006). "'Isolated errors in counsel's representation generally will not rise to the level of ineffectiveness, unless the error is so serious that [the] defendant did not receive a fair trial'" (People v Windley, 70 A.D.3d 1060, 1061, quoting People v Henry, 95 N.Y.2d 563, 565-566).
The defendant's contention that he was deprived of the effective assistance of counsel is without merit. Contrary to the defendant's contention, defense counsel was not ineffective for failing to cross-examine the complainant about his entire criminal history and for failing to recall the complainant as a witness (see People v Abodalo, 189 A.D.3d 1607, 1608; People v Hinton, 285 A.D.2d 476, 477). Likewise, defense counsel was not ineffective for failing to question the People's witnesses about the dimensions of the clothing iron used in the commission of the crimes. The defendant failed to establish the absence of a strategic reason or other legitimate explanation for defense counsel's alleged shortcomings (see People v Jeffriesel, 209 A.D.3d 1034, 1036; People v Salas, 208 A.D.3d 1368, 1369). Viewed in totality, the record demonstrates that defense counsel provided meaningful representation (see People v Long, 222 A.D.3d 881, 882; People v Bryant, 219 A.D.3d at 624; People v Dennis, 192 A.D.3d 1137, 1137).
BARROS, J.P., CHAMBERS, VOUTSINAS and VENTURA, JJ., concur.
The People, etc., respondent, v
Shawn Weaver, appellant.
2019-09016
(Ind. No. 460/18)
DECISION & ORDER ON MOTION
Appeal from a judgment of the Supreme Court, Westchester County, rendered July 9, 2019. Motion by the respondent to strike stated portions of the appellant's brief on the ground that they refer to matter dehors the record. By decision and order on motion of this Court dated February 16, 2024, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is
ORDERED that the motion is granted, and subsections C and D of Point II of the appellant's brief are stricken and have not been considered in the determination of the appeal.
BARROS, J.P., CHAMBERS, VOUTSINAS and VENTURA, JJ., concur.