June 7, 2013
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
UKIAH R. ATKINS, ALSO KNOWN AS "K, " DEFENDANT-APPELLANT.
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.
FRANK A. ALOI, ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.
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 ), and the judgment of conviction was affirmed on appeal (People v Atkins, 39 A.D.3d 1230, lv denied 9 N.Y.3d 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 N.Y.2d 705, 709; see People v Benevento, 91 N.Y.2d 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 N.Y.3d 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 A.D.2d 971, 971, lv denied 72 N.Y.2d 913). Additionally, defendant failed to demonstrate that the decision of his trial counsel not to use an alibi defense was "prejudicial to him" (People v Barber, 202 A.D.2d 978, 979, lv denied 83 N.Y.2d 908, citing People v Ford, 46 N.Y.2d 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  [d]).