         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
346
KA 09-01893
PRESENT: SCUDDER, P.J., CENTRA, SCONIERS, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT ELAMIN, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHELLE L.
CIANCIOSA OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered July 17, 2009. The judgment convicted
defendant, upon a nonjury verdict, of unauthorized use of a vehicle in
the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of unauthorized use of a vehicle in the third
degree (Penal Law § 165.05 [1]). Defendant failed to preserve for our
review his contention that the evidence is legally insufficient to
support the conviction (see People v Gray, 86 NY2d 10, 19) and, in any
event, that contention is without merit (see generally People v
Bleakley, 69 NY2d 490, 495). The victim identified defendant at trial
as one of the two men who were using his vehicle. A police officer
testified that he observed a vehicle matching the description of the
victim’s vehicle and, when he attempted to pull it over, two men fled
from the vehicle and abandoned it. Another officer located defendant,
who matched the description of one of the men who fled from the
victim’s vehicle, in proximity thereto. Viewing the evidence in light
of the elements of the crime in this nonjury trial (see People v
Danielson, 9 NY3d 342, 349), we reject defendant’s further contention
that the verdict is against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495).

     Defendant contends that he received ineffective assistance of
counsel because defense counsel failed to argue at the Wade hearing
that the detention of defendant for purposes of a photo array was
unlawful pursuant to People v Hicks (68 NY2d 234). We reject that
contention. “ ‘[I]t is incumbent on defendant to demonstrate the
absence of strategic or other legitimate explanations’ for [defense]
                                 -2-                           346
                                                         KA 09-01893

counsel’s alleged shortcomings” (People v Benevento, 91 NY2d 708, 712,
quoting People v Rivera, 71 NY2d 705, 709; see People v Gregory, 72
AD3d 1522, lv denied 15 NY3d 805), and defendant failed to meet that
burden. The officer who detained defendant after locating him in
proximity to the victim’s vehicle testified at the Wade hearing that
defendant was transported to the police station for purposes of
conducting a photo array with the victim within only a few minutes of
being detained. That testimony established that the length of the
detention was minimal and lawful (see Hicks, 68 NY2d at 243; People v
Dibble, 43 AD3d 1363, 1364-1365, lv denied 9 NY3d 1032). When the
officer subsequently testified at trial that she was mistaken in her
testimony at the Wade hearing and that the detention of defendant
prior to the photo array lasted approximately one hour, defense
counsel could have moved to reopen the Wade hearing (see generally
People v Bryant, 43 AD3d 1377, 1378, lv denied 9 NY3d 1031; People v
Walker, 269 AD2d 843, lv denied 94 NY2d 953). Defendant, however,
failed to establish that there was no legitimate explanation for
defense counsel’s failure to do so (see People v Waliyuddin, 286 AD2d
915, lv denied 97 NY2d 659). Indeed, we note that, at a reopened Wade
hearing, the People could have called the victim to testify to
establish that he had an independent basis for his in-court
identification of defendant (see People v Hill, 53 AD3d 1151; see
generally People v Chipp, 75 NY2d 327, 335, cert denied 498 US 833).
Viewing the evidence, the law and the circumstances of this case, in
totality and as of the time of the representation, we conclude that
defendant received meaningful representation (see generally People v
Baldi, 54 NY2d 137, 147).

     We have considered defendant’s remaining contentions and conclude
that they are without merit.




Entered:   March 25, 2011                       Patricia L. Morgan
                                                Clerk of the Court
