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

1328
KA 12-00608
PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EMANUEL B. INMAN, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John L.
DeMarco, J.), rendered January 18, 2012. The judgment convicted
defendant, upon a jury verdict, of robbery in the first degree (two
counts), criminal possession of a weapon in the second degree (two
counts) and reckless endangerment in the first degree.

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

      Memorandum: On appeal from a judgment convicting him upon a jury
verdict of, inter alia, two counts each of robbery in the first degree
(Penal Law § 160.15 [2], [4]) and criminal possession of a weapon in
the second degree (§ 265.03 [1] [b]; [3]), defendant contends that he
was denied effective assistance of counsel. We reject that
contention. Viewing defendant’s representation in its entirety, we
conclude that defendant was afforded meaningful representation (see
generally People v Schulz, 4 NY3d 521, 530-531). “[I]t is well
settled that disagreement over trial strategy is not a basis for a
determination of ineffective assistance of counsel” (People v
Dombrowski, 94 AD3d 1416, 1417, lv denied 19 NY3d 959). In this case,
the alleged instances of ineffective assistance “are based largely on
his hindsight disagreements with defense counsel’s trial strategies,
and defendant failed to meet his burden of establishing the absence of
any legitimate explanations for those strategies” (People v Morrison,
48 AD3d 1044, 1045, lv denied 10 NY3d 867). To the extent that
defendant contends that defense counsel was ineffective for failing to
object to the prosecutor’s remarks during summation, that contention
is without merit inasmuch as the prosecutor’s comments were fair
comment on the evidence and did not constitute prosecutorial
misconduct (see People v Martinez, 114 AD3d 1173, 1174, lv denied 22
NY3d 1200; People v Goupil, 104 AD3d 1215, 1217, lv denied 21 NY3d
943).
                                 -2-                         1328
                                                        KA 12-00608

     Contrary to defendant’s further contention, County Court did not
err in admitting in evidence a hat found at the crime scene and the
results of DNA testing of the hat, based on a gap in the chain of
custody. “ ‘The People provided sufficient assurances of the identity
and unchanged condition of the [hat] . . . , and any alleged gaps in
the chain of custody went to the weight of the evidence and not its
admissibility’ ” (People v Jefferson, 125 AD3d 1463, 1464, lv denied
25 NY3d 990; see People v Hawkins, 11 NY3d 484, 494).

     Finally, we reject defendant’s contention that the court erred in
admitting in evidence a photograph of a vehicle parked in the driveway
of defendant’s home. “In New York, the general rule is that all
relevant evidence is admissible unless its admission violates some
exclusionary rule . . . Evidence is relevant if it has a tendency in
reason to prove the existence of any material fact” (People v Scarola,
71 NY2d 769, 777). Nevertheless, relevant evidence may be determined
to be inadmissible if its “probative value is substantially outweighed
by the danger that it will unfairly prejudice the other side or
mislead the jury” (id.). Here, a witness testified that the
perpetrator of the crime fled the scene in a vehicle that was similar
to the one depicted in the photograph, and we conclude that “the
probative value of the [photograph] far outweighs any unfair prejudice
inasmuch as it was relevant to the issue of the [perpetrator’s]
identity” (People v McCullough, 117 AD3d 1415, 1416, lv denied 23 NY3d
1040). In any event, any error in the admission of the photograph is
harmless (see generally People v Crimmins, 36 NY2d 230, 241-242).




Entered:   December 23, 2015                   Frances E. Cafarell
                                               Clerk of the Court
