        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

295
KA 12-01680
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT

                    V                             MEMORANDUM AND ORDER

RAFAEL DIAZ, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Monroe County Court (James J. Piampiano, J.), entered August 21,
2012. The order denied defendant’s motion pursuant to CPL 440.10 to
vacate the judgment convicting defendant of murder in the second
degree and robbery in the first degree.

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

     Memorandum: Defendant was convicted following a jury trial of
murder in the second degree (Penal Law § 125.25 [3] [felony murder])
and robbery in the first degree (§ 160.15 [4]), and the judgment of
conviction was affirmed on appeal (People v Diaz, 38 AD3d 1314, lv
denied 9 NY3d 864). Defendant thereafter moved pursuant to CPL 440.10
to vacate the judgment on the ground that he was denied effective
assistance of counsel at trial. County Court summarily denied the
motion, and we granted defendant’s CPL 460.15 application for a
certificate granting leave to appeal.

     “To prevail on a claim of ineffective assistance of counsel, it
is incumbent on defendant to demonstrate the absence of strategic or
other legitimate explanations” for defense counsel’s allegedly
deficient conduct (People v Rivera, 71 NY2d 705, 709; see People v
Benevento, 91 NY2d 708, 712-713). At trial, the People were limited
to using the indicted robbery as the underlying felony for the felony
murder charge, and were precluded from using an unindicted robbery of
the murder victim as the underlying felony (see Diaz, 38 AD3d at
1314). In his CPL 440.10 motion, defendant contended that trial
counsel was ineffective in failing to use the statement of his
codefendant at trial inasmuch as that statement supported the theory
that the fatal shooting occurred during the robbery of the murder
                                 -2-                           295
                                                         KA 12-01680

victim and not the victim of the indicted robbery. We reject that
contention inasmuch as the statement of the codefendant, together with
the other evidence at the trial, established that the fatal shooting
occurred during the robbery of both the murder victim and the victim
of the indicted robbery. The statement of the codefendant would not
have undermined the People’s theory and proof at trial but, rather,
would have undermined trial counsel’s reasonable defense strategy to
preclude any evidence of the unindicted robbery. Trial counsel’s
decision not to use the statement of the codefendant therefore cannot
be characterized as ineffective assistance of counsel (see Benevento,
91 NY2d at 712-713).




Entered:   March 28, 2014                       Frances E. Cafarell
                                                Clerk of the Court
