Opinion
KA 99-1530
June 14, 2002.
Appeal from a judgment of Supreme Court, Erie County (Wolfgang, J.), entered October 21, 1999, convicting defendant after a jury trial of robbery in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JESSAMINE I. JACKSON OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., WISNER, KEHOE, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
On appeal from a judgment convicting him of robbery in the second degree (Penal Law § 160.10 [a]), defendant contends that he was denied effective assistance of counsel. We disagree. 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 People v. Baldi, 54 N.Y.2d 137, 147). Defendant's challenge to defense counsel's questioning of potential jurors and witnesses is based on a disagreement with trial strategy, which does not constitute ineffective assistance of counsel ( see People v. Flores, 84 N.Y.2d 184, 187; People v. Rivera, 71 N.Y.2d 705, 708-709). The failure to request a missing witness charge with respect to the police officer who conducted the identification procedure likewise does not constitute ineffective assistance of counsel ( see People v. Cruz, 165 A.D.2d 205, 207-208, lv denied 77 N.Y.2d 959).
Contrary to the further contentions of defendant, the evidence of physical injury is legally sufficient to support the conviction of robbery in the second degree (§ 160.10 [2] [a]; see e.g. People v. Smith, 283 A.D.2d 208, lv denied 96 N.Y.2d 907; People v. Bernier, 279 A.D.2d 701, 702, lv denied 96 N.Y.2d 797) and the verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495). The sentence is neither unduly harsh nor severe.