RIVERA, TYQUAN L., PEOPLE v ( 2013 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1029
    KA 09-02512
    PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                               MEMORANDUM AND ORDER
    TYQUAN L. RIVERA, DEFENDANT-APPELLANT.
    MARK D. FUNK, ROCHESTER, FOR DEFENDANT-APPELLANT.
    SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Supreme Court, Monroe County
    (Joseph D. Valentino, J.), rendered October 16, 2009. The judgment
    convicted defendant, upon a jury verdict, of attempted murder in the
    second degree and assault in the first degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: Defendant appeals from a judgment convicting him as
    a juvenile offender, upon a jury verdict, of attempted murder in the
    second degree (Penal Law §§ 110.00, 125.25 [1]) and assault in the
    first degree (§ 120.10 [1]) in the shooting of a Rochester police
    officer. We reject defendant’s contention that he was deprived of
    effective assistance of counsel based solely on an allegedly
    prejudicial statement that defense counsel made during his opening
    statement concerning a rumor that the shooting was part of a gang
    initiation, which defense counsel promptly stated was baseless. “A
    single error may qualify as ineffective assistance, but only when the
    error is sufficiently egregious and prejudicial as to compromise a
    defendant’s right to a fair trial” (People v Caban, 5 NY3d 143, 152;
    see People v Atkins, 107 AD3d 1465, 1465). Such an error did not
    occur here. This was a high publicity case, and defendant has not
    demonstrated “ ‘the absence of strategic or other legitimate
    explanations’ for counsel’s alleged shortcoming[]” (People v
    Benevento, 91 NY2d 708, 712). In addition to contending that the
    above error by itself warrants reversal, defendant also contends that
    there were other instances of ineffectiveness. We conclude, however,
    that the evidence, the law and the circumstances of this case, viewed
    in totality and as of the time of the representation, establish that
    defendant received meaningful representation (see generally People v
    Baldi, 54 NY2d 137, 147).
    Contrary to defendant’s further contention, we conclude that the
    -2-                         1029
    KA 09-02512
    evidence is legally sufficient to support the conviction and, viewing
    the evidence in light of the elements of the crimes as charged to the
    jury (see People v Danielson, 9 NY3d 342, 349), we further conclude
    that the verdict is not against the weight of the evidence (see
    generally People v Bleakley, 69 NY2d 490, 495). “The fact that no one
    saw defendant fire the shot that [injured] the victim does not render
    the evidence legally insufficient, inasmuch as there was ample
    circumstantial evidence establishing defendant’s identity as the
    shooter” (People v Moore [appeal No. 2], 78 AD3d 1658, 1659, lv denied
    17 NY3d 798). Moreover, “[w]here, as here, defendant’s statements
    could be interpreted as relevant admissions of guilt . . . , there
    [i]s both direct and circumstantial evidence” of defendant’s guilt
    (People v Casper, 42 AD3d 887, 888, lv denied 9 NY3d 990 [internal
    quotation marks omitted]). Finally, we have considered defendant’s
    remaining contentions and conclude that none requires reversal or
    modification of the judgment.
    Entered:   December 27, 2013                   Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 09-02512

Filed Date: 12/27/2013

Precedential Status: Precedential

Modified Date: 10/8/2016