Opinion
2014–10612 Ind. No. 778/11
01-09-2019
The PEOPLE, etc., Respondent, v. Devon WILLIAMS, Appellant.
Paul Skip Laisure, New York, N.Y. (Angad Singh of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and Arieh Schulman of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Angad Singh of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and Arieh Schulman of counsel), for respondent.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
ORDERED that the judgment is affirmed.
The defendant contends that the admission into evidence at trial of a photograph depicting him and other individuals, printed from a social media website, was unduly prejudicial because it suggested that he was affiliated with a street gang. However, that contention was affirmatively waived when the defendant's trial counsel stated "I have no objection" to the admission of the photograph after stipulating to an instruction that addressed counsel's concerns by advising the jury that the photograph was not being admitted to allege any gang affiliation and that none of the individuals depicted therein were known to have any gang affiliation (see People v. Robinson, 143 A.D.3d 744, 745–746, 38 N.Y.S.3d 601 ; People v. Armstrong, 138 A.D.3d 877, 878–879, 29 N.Y.S.3d 475 ; People v. Gega, 74 A.D.3d 1229, 1231, 904 N.Y.S.2d 716 ). The additional challenges to the admission of the photograph which the defendant advances on appeal are unpreserved for appellate review, since they were not raised at trial (see CPL 470.05[2] ; People v. Donovan, 59 N.Y.2d 834, 836, 464 N.Y.S.2d 745, 451 N.E.2d 492 ; People v. Velez–Garriga, 159 A.D.3d 928, 929, 70 N.Y.S.3d 77 ; People v. Sparagano, 153 A.D.3d 1367, 1368, 60 N.Y.S.3d 484 ). In this regard, the defendant's related contention that his trial counsel was ineffective in failing to object on these additional grounds is unavailing, as the defendant has failed to establish "the absence of strategic or other legitimate explanations" ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ) for counsel's actions (see People v. Barboni, 21 N.Y.3d 393, 405–406, 971 N.Y.S.2d 729, 994 N.E.2d 820 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., RIVERA, DUFFY and BRATHWAITE NELSON, JJ., concur.