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

1029
KA 09-02512
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

TYQUAN L. RIVERA, DEFENDANT-APPELLANT.


MARK D. FUNK, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered October 16, 2009. The judgment
convicted defendant, upon a jury verdict, of attempted murder in the
second degree and assault in the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him as
a juvenile offender, upon a jury verdict, of attempted murder in the
second degree (Penal Law §§ 110.00, 125.25 [1]) and assault in the
first degree (§ 120.10 [1]) in the shooting of a Rochester police
officer. We reject defendant’s contention that he was deprived of
effective assistance of counsel based solely on an allegedly
prejudicial statement that defense counsel made during his opening
statement concerning a rumor that the shooting was part of a gang
initiation, which defense counsel promptly stated was baseless. “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;
see People v Atkins, 107 AD3d 1465, 1465). Such an error did not
occur here. This was a high publicity case, and defendant has not
demonstrated “ ‘the absence of strategic or other legitimate
explanations’ for counsel’s alleged shortcoming[]” (People v
Benevento, 91 NY2d 708, 712). In addition to contending that the
above error by itself warrants reversal, defendant also contends that
there were other instances of ineffectiveness. We conclude, however,
that the evidence, the law and the circumstances of this case, viewed
in totality and as of the time of the representation, establish that
defendant received meaningful representation (see generally People v
Baldi, 54 NY2d 137, 147).

     Contrary to defendant’s further contention, we conclude that the
                                 -2-                         1029
                                                        KA 09-02512

evidence is legally sufficient to support the conviction and, viewing
the evidence in light of the elements of the crimes as charged to the
jury (see People v Danielson, 9 NY3d 342, 349), we further conclude
that the verdict is not against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495). “The fact that no one
saw defendant fire the shot that [injured] the victim does not render
the evidence legally insufficient, inasmuch as there was ample
circumstantial evidence establishing defendant’s identity as the
shooter” (People v Moore [appeal No. 2], 78 AD3d 1658, 1659, lv denied
17 NY3d 798). Moreover, “[w]here, as here, defendant’s statements
could be interpreted as relevant admissions of guilt . . . , there
[i]s both direct and circumstantial evidence” of defendant’s guilt
(People v Casper, 42 AD3d 887, 888, lv denied 9 NY3d 990 [internal
quotation marks omitted]). Finally, we have considered defendant’s
remaining contentions and conclude that none requires reversal or
modification of the judgment.




Entered:   December 27, 2013                   Frances E. Cafarell
                                               Clerk of the Court
