Opinion
No. KA 06-02154.
March 14, 2008.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), rendered July 14, 2006. The judgment convicted defendant after a nonjury trial of, inter alia, robbery in the third degree.
EOANNOU, LANA D'AMICO, BUFFALO (JEREMY D. SCHWARTZ OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
Present: Hurlbutt, J.P., Martoche, Lunn, Green and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial of robbery in the third degree (Penal Law § 160.05), assault in the third degree (§ 120.00 [1]), and menacing in the second degree (§ 120.14 [1]). We reject the contention of defendant that he was denied effective assistance of counsel based upon defense counsel's failure to assert the defense that defendant was not guilty by reason of mental disease or defect ( see generally People v Davalloo, 39 AD3d 559 [2007], lv denied 9 NY3d 864). Defendant failed to meet his burden of "demonstrating] the absence of strategic or other legitimate explanations" for defense counsel's failure to assert that defense ( People v Garcia, 75 NY2d 973, 974) and, upon our review of the record, we conclude that defense counsel provided meaningful representation to defendant ( see generally People v Benevento, 91 NY2d 708, 712; People v Baldi, 54 NY2d 137, 147). Contrary to defendant's further contention, the verdict is not against the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495).