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

595
KA 09-01138
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

UKIAH R. ATKINS, ALSO KNOWN AS “K,”
DEFENDANT-APPELLANT.


FRANK A. ALOI, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN 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 (Frank P. Geraci, Jr., J.), entered April 30,
2009. The order denied the motion of defendant to vacate the judgment
of conviction pursuant to CPL 440.10.

     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 [1]), and the judgment
of conviction was affirmed on appeal (People v Atkins, 39 AD3d 1230,
lv denied 9 NY3d 872). Defendant thereafter moved pursuant to CPL
440.10 to vacate the judgment. After that motion was summarily
denied, we granted his CPL 460.15 application for a certificate
granting leave to appeal.

     We reject defendant’s contention that he was denied effective
assistance of counsel at trial. “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). “A single error may
qualify as ineffective assistance, but only when the error is
sufficiently egregious and prejudicial as to compromise a defendant’s
right to a fair trial” (People v Caban, 5 NY3d 143, 152). Here,
“[trial counsel’s] decision not to use an alibi defense, which the
District Attorney was prepared to rebut, was a matter of trial
strategy and cannot be characterized as ineffective assistance of
counsel” (People v Villone, 138 AD2d 971, 971, lv denied 72 NY2d 913).
Additionally, defendant failed to demonstrate that the decision of his
trial counsel not to use an alibi defense was “prejudicial to him”
                                 -2-                           595
                                                         KA 09-01138

(People v Barber, 202 AD2d 978, 979, lv denied 83 NY2d 908, citing
People v Ford, 46 NY2d 1021, 1023). Contrary to defendant’s further
contention, he was not entitled to a hearing pursuant to CPL 440.30
(5) inasmuch as his factual contentions concerning trial counsel’s
alleged deficiencies are unsupported by “any other affidavit or
evidence” and, under the circumstances of this case, there is “no
reasonable possibility that [defendant’s] allegation[s are] true” (CPL
440.30 [4] [d]).




Entered:   June 7, 2013                         Frances E. Cafarell
                                                Clerk of the Court
