                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 20, 2014                    105225
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

LACEDRIC GRIFFIN,
                    Appellant.
________________________________


Calendar Date:   October 15, 2014

Before:   Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ.

                              __________


      Salvatore Adamo, Albany, for appellant, and appellant
pro se.

      P. David Soares, District Attorney, Albany (Steven M. Sharp
of counsel), for respondent.

                              __________


Stein, J.

      Appeal from a judgment of the Supreme Court (Teresi, J.),
rendered June 26, 2012 in Albany County, upon a verdict
convicting defendant of the crime of robbery in the second
degree.

      On the evening of April 9, 2011, two men with their faces
covered entered a neighborhood grocery store/deli and attacked
the owner of the store. During the struggle that ensued, the
victim pulled off the mask worn by one of the perpetrators and
the two assailants exited the store with more than $300, leaving
the mask behind. Subsequent testing of DNA recovered from the
mask was linked to defendant and he was arrested. Defendant was
ultimately charged in a two-count indictment with robbery in the
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second and third degrees. Following a jury trial, defendant was
convicted of robbery in the second degree, and his subsequent
motion to set aside the verdict was denied. Supreme Court
thereafter sentenced defendant, as a second felony offender, to
15 years in prison, to be followed by five years of postrelease
supervision. Defendant now appeals, and we affirm.

      Initially, we reject defendant's contention that his
conviction is not supported by legally sufficient evidence and is
against the weight of the evidence because the People failed to
establish beyond a reasonable doubt his identity as the masked
perpetrator. Robbery in the second degree requires the People to
prove that a defendant forcibly stole property while being aided
by another person actually present (see Penal Law § 160.10 [1];
People v Gordon, 23 NY3d 643, 649 [2014]). A person forcibly
steals property when "he [or she] uses or threatens the immediate
use of physical force upon another person for the purpose
of . . . [c]ompelling the owner of such property or another
person to deliver up the property or to engage in other conduct
which aids in the commission of the larceny" (Penal Law § 160.00
[2]; see People v Gordon, 23 NY3d at 649-650; People v Smith, 22
NY3d 1092, 1094 [2014]).

      At trial, the People presented evidence that, on the
evening in question, two men entered the store, each with his
face covered. One of the perpetrators wore a mask and attacked
the victim, while the other, who wore a scarf over his face,
grabbed the money. As the victim was fighting back, he took hold
of the assailant's mask and pulled it off of his head. The
second perpetrator also fought with the victim, and the two
assailants then left the store with the money, but without the
mask. The police responded to the victim's 911 call, documented
the victim's statement – which included a description of the
assailants' ethnicity and general build – and recovered the mask.
However, the victim did not see either perpetrator's face and was
unable to identify defendant in various photo arrays presented by
the police.

      To establish defendant's identity as the masked man at
trial, the People called as a witness Kristine Robinson, a
forensic scientist at the New York State Police Forensic
                              -3-                105225

Investigation Center, who performed DNA testing on the mask.
Robinson testified that testing of the DNA found on the inside of
the mask revealed more than one person's DNA, but that
defendant's DNA was consistent with that of a major contributor
who left 90% of the total DNA on the inside of the mask.
Robinson also testified that the last person wearing the mask
would have deposited more DNA, and ultimately concluded that the
chances of someone other than defendant being the major
contributor of DNA was less than one in 300 billion. The victim
also testified that, while he did not see the perpetrator's face,
defendant matched the size and height of the perpetrator who wore
the mask. This evidence was more than sufficient to establish
defendant's identity as the mask-wearing perpetrator (see People
v Dearmas, 48 AD3d 1226, 1228 [2008], lv denied 10 NY3d 839
[2008]). Thus, viewing the evidence in the light most favorable
to the People, we find that there was legally sufficient proof of
each element of the crime of robbery in the second degree to
sustain defendant's conviction (see People v Gordon, 23 NY3d at
649; People v Bleakley, 69 NY2d 490, 495 [1987]; People v Horton,
106 AD3d 1192, 1193-1194 [2013], lv denied 21 NY3d 1016 [2013];
People v Valderrama, 285 AD2d 902, 903-904 [2001], lv denied 97
NY2d 659 [2001]). In addition, while a different verdict would
not have been unreasonable, when we view the evidence in a
neutral light and accord appropriate deference to the jury's
credibility assessments, we are satisfied that the verdict is in
accord with the weight of the evidence (see People v Bleakley, 69
NY2d at 495; People v Walker, 117 AD3d 1094, 1095-1096 [2014];
People v Pope, 96 AD3d 1231, 1234 [2012], lv denied 20 NY3d 1064
[2013]; People v Valderrama, 285 AD2d at 904).

      We also reject defendant's argument that he was denied the
effective assistance of counsel. To this end, defendant alleges
a single error on counsel's part, namely, counsel's decision to
elicit testimony from a police detective regarding defendant's
prior criminal history. "When reviewing a claim of ineffective
assistance of counsel, courts must avoid confusing actual
ineffectiveness with mere losing tactics, and a defendant must
demonstrate the absence of strategic or reasonable explanations
for counsel's alleged shortcomings" (People v McCloud, 121 AD3d
1286, ___, 2014 NY Slip Op 07204, *5 [2014]; see People v Caban,
5 NY3d 143, 152 [2005]; People v Desmond, 118 AD3d 1131, 1135
                              -4-                105225

[2014]). Here, defense counsel acknowledged at trial that he
elicited the challenged testimony as part of a chosen and
purposeful course of action, designed to show that defendant had
never previously been convicted of robbery or another violent
crime (see generally People v Lane, 83 AD3d 1118, 1119 [2011], lv
denied 17 NY3d 818 [2011]). In fact, counsel also elected to
have the jury view defendant's interview with police, during
which defendant discussed his prior felony drug conviction, and
requested that appropriate limiting instructions be given
relative to the jury's consideration of defendant's criminal
history. Further, defendant independently informed Supreme Court
on multiple occasions that he consented to the jury seeing the
recorded interview, including his statement regarding his prior
conviction. The record also confirms that trial counsel
zealously advocated for defendant by, among other things,
conducting effective cross-examination, offering thoughtful
opening and closing arguments and making appropriate trial and
posttrial motions. Thus, when we consider counsel's
representation as a whole, we find that defendant received
meaningful representation (see People v Blake, ___ NY3d ___, ___,
2014 NY Slip Op 07086, *3 [2014]; People v Benevento, 91 NY2d
708, 712 [1998]; People v Desmond, 118 AD3d at 1135-1136).

      We are unpersuaded by defendant's further contention that
his sentence was harsh and excessive and an abuse of Supreme
Court's discretion. To the extent argued, the record does not
support a claim that the sentence was vindictive or a punishment
for defendant's assertion of his constitutional right to a trial
(see People v Shoemaker, 119 AD3d 1073, 1077 [2014]; People v
Foulkes, 117 AD3d 1176, 1177 [2014]). While defendant received
the maximum permissible sentence (see Penal Law §§ 70.06 [3] [c];
160.10), it appropriately reflects the court's consideration of
defendant's extensive criminal history – including a prior drug
felony and a parole violation – his physical attack on the victim
and his failure to accept responsibility for the crime. Thus, we
find no abuse of discretion or extraordinary circumstances that
would warrant a reduction of the sentence (see People v Sheppard,
119 AD3d 986, 987 [2014]; People v Castellano, 100 AD3d 1256,
1258 [2012], lv denied 20 NY3d 1096 [2013]). We have examined
the remaining arguments raised in defendant's pro se supplemental
brief, including his statutory speedy trial claim, and find them
                             -5-                  105225

to be lacking in merit.

     Peters, P.J., Garry, Egan Jr. and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                            ENTER:




                            Robert D. Mayberger
                            Clerk of the Court
