THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v LACEDRIC GRIFFIN, Appellant.
105225
State of New York Supreme Court, Appellate Division Third Judicial Department
November 20, 2014
Decided and Entered: November 20, 2014
Calendar Date: October 15, 2014
Before: Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ.
Salvatore Adamo, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
MEMORANDUM AND ORDER
Stein, J.
Appeal from a judgment of the Supreme Court (Teresi, J.), rendered June 26, 2012 in Albany County, upon a verdict convicting defendant of the crime of robbery in the second degree.
On the evening of April 9, 2011, two men with their faces covered entered a neighborhood grocery store/deli and attacked the owner of the store. During the struggle that ensued, the victim pulled off the mask worn by one of the perpetrators and the two assailants exited the store with more than $300, leaving the mask behind. Subsequent testing of DNA recovered from the mask was linked to defendant and he was arrested. Defendant
Initially, we reject defendant‘s contention that his conviction is not supported by legally sufficient evidence and is against the weight of the evidence because the People failed to establish beyond a reasonable doubt his identity as the masked perpetrator. Robbery in the second degree requires the People to prove that a defendant forcibly stole property while being aided by another person actually present (see
At trial, the People presented evidence that, on the evening in question, two men entered the store, each with his face covered. One of the perpetrators wore a mask and attacked the victim, while the other, who wore a scarf over his face, grabbed the money. As the victim was fighting back, he took hold of the assailant‘s mask and pulled it off of his head. The second perpetrator also fought with the victim, and the two assailants then left the store with the money, but without the mask. The police responded to the victim‘s 911 call, documented the victim‘s statement – which included a description of the assailants’ ethnicity and general build – and recovered the mask. However, the victim did not see either perpetrator‘s face and was unable to identify defendant in various photo arrays presented by the police.
To establish defendant‘s identity as the masked man at trial, the People called as a witness Kristine Robinson, a forensic scientist at the New York State Police Forensic Investigation Center, who performed DNA testing on the mask. Robinson testified that testing of the DNA found on the inside of the mask revealed more than one person‘s DNA, but that defendant‘s DNA was consistent with that of a major contributor who left 90% of the total DNA on the inside of the mask. Robinson also testified that the last person wearing the mask would have
We also reject defendant‘s argument that he was denied the effective assistance of counsel. To this end, defendant alleges a single error on counsel‘s part, namely, counsel‘s decision to elicit testimony from a police detective regarding defendant‘s prior criminal history. “When reviewing a claim of ineffective assistance of counsel, courts must avoid confusing actual ineffectiveness with mere losing tactics, and a defendant must demonstrate the absence of strategic or reasonable explanations for counsel‘s alleged shortcomings” (People v McCloud, 121 AD3d 1286, 2014 NY Slip Op 07204, *5 [2014]; see People v Caban, 5 NY3d 143, 152 [2005]; People v Desmond, 118 AD3d 1131, 1135 [2014]). Here, defense counsel acknowledged at trial that he elicited the challenged testimony as part of a chosen and purposeful course of action, designed to show that defendant had never previously been convicted of robbery or another violent crime (see generally People v Lane, 83 AD3d 1118, 1119 [2011], lv denied 17 NY3d 818 [2011]). In fact, counsel also elected to have the jury view defendant‘s interview with police, during which defendant discussed his prior felony drug conviction, and requested that appropriate limiting instructions be given relative to the jury‘s consideration of defendant‘s criminal history. Further, defendant independently informed Supreme Court on multiple occasions
We are unpersuaded by defendant‘s further contention that his sentence was harsh and excessive and an abuse of Supreme Court‘s discretion. To the extent argued, the record does not support a claim that the sentence was vindictive or a punishment for defendant‘s assertion of his constitutional right to a trial (see People v Shoemaker, 119 AD3d 1073, 1077 [2014]; People v Foulkes, 117 AD3d 1176, 1177 [2014]). While defendant received the maximum permissible sentence (see
Peters, P.J., Garry, Egan Jr. and Devine, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court