legitimate explanation defense in New York

2024Moreover, defendant has not demonstrated the absence of a legitimate explanation for defense counsel's allegedly deficient conduct ( see generally People v Benevento , 91 NY2d 708, 712-713 [1998]).

2011Insofar as he contends that defense counsel was ineffective in failing to seek a missing witness charge, we note that defendant failed to establish the absence of a legitimate explanation for defense counsel’s failure to do so (see People v Benevento, 91 NY2d 708, 712-713 [1998]; People v Maryon, 20 AD3d 911, 913 [2005], lv denied 5 NY3d 854 [2005]).

2022We therefore conclude that defendant has failed to demonstrate the absence of a legitimate explanation for defense counsel's alleged shortcomings ( see generally People v Burton , 191 AD3d 1311, 1314-1315 [4th Dept 2021], lv denied 36 NY3d 1095 [2021]).

2022Consequently, we conclude that defendant has failed to demonstrate the absence of a legitimate explanation for defense counsel's failure to object ( see People v Burton , 191 AD3d 1311, 1314-1315 [4th Dept 2021], lv denied 36 NY3d 1095 [2021]).

2011Indeed, “[a]bsent proof that such witness would have provided noncumulative testimony which was favorable to [the prosecution], there was no basis for such a charge” (People v Thomas, 299 AD2d 942, 943 , lv denied 99 NY2d 620 [internal quotation marks omitted]; see generally People v Savinon, 100 NY2d 192, 197 ).

2011Indeed, “[a]bsent proof that such witness would have provided noncumulative testimony which was favorable to [the prosecution], there was no basis for such a charge” (People v Thomas, 299 AD2d 942, 943 [2002], lv denied 99 NY2d 620 [2003] [internal quotation marks omitted]; see generally People v Savinon, 100 NY2d 192, 197 [2003]).

2011Insofar as he contends that defense counsel was ineffective in failing to seek a missing witness charge, we note that defendant failed to establish the absence of a legitimate explanation for defense counsel’s failure to do so (see People v Benevento, 91 NY2d 708 , 712- 713; People v Maryon, 20 AD3d 911, 913 , lv denied 5 NY3d 854 ).

2011Insofar as he contends that defense counsel was ineffective in failing to seek a missing witness charge, we note that defendant failed to establish the absence of a legitimate explanation for defense counsel’s failure to do so (see People v Benevento, 91 NY2d 708, 712-713 [1998]; People v Maryon, 20 AD3d 911, 913 [2005], lv denied 5 NY3d 854 [2005]).

2011Indeed, “[a]bsent proof that such witness would have provided noncumulative testimony which was favorable to [the prosecution], there was no basis for such a charge” (People v Thomas, 299 AD2d 942, 943 , lv denied 99 NY2d 620 [internal quotation marks omitted]; see generally People v Savinon, 100 NY2d 192, 197 ).

2011Indeed, “[a]bsent proof that such witness would have provided noncumulative testimony which was favorable to [the prosecution], there was no basis for such a charge” (People v Thomas, 299 AD2d 942, 943 [2002], lv denied 99 NY2d 620 [2003] [internal quotation marks omitted]; see generally People v Savinon, 100 NY2d 192, 197 [2003]).

2021Likewise, defendant did not establish the absence of a legitimate explanation for defense counsel's failure to object to certain leading questions by the prosecutor ( see People v Robinson , 158 AD3d 1263 , 1264 [4th Dept 2018], lv denied 32 NY3d 1067 [2018]; People v Pottorff , 145 AD3d 1095, 1097-1098 [3d Dept 2016], lv denied 30 NY3d 1063 [2017]; People v Washington , 122 AD3d 1406 , 1407 [4th Dept 2014], lv denied 25 NY3d 1173 [2015]), or for defense counsel's failure to pursue an intoxication defense ( see People v Quinn , 182 AD3d 1019, 1020 [4th Dept 2020], lv denied 35 NY3d 1048 [2020]

2021Upon viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received meaningful representation ( see generally People v Baldi , 54 NY2d 137, 147 [1981]).

2021Likewise, defendant did not establish the absence of a legitimate explanation for defense counsel's failure to object to certain leading questions by the prosecutor ( see People v Robinson , 158 AD3d 1263 , 1264 [4th Dept 2018], lv denied 32 NY3d 1067 [2018]; People v Pottorff , 145 AD3d 1095, 1097-1098 [3d Dept 2016], lv denied 30 NY3d 1063 [2017]; People v Washington , 122 AD3d 1406 , 1407 [4th Dept 2014], lv denied 25 NY3d 1173 [2015]), or for defense counsel's failure to pursue an intoxication defense ( see People v Quinn , 182 AD3d 1019, 1020 [4th Dept 2020], lv denied 35 NY3d 1048 [2020]

2020Given the likelihood that any further examination may have resulted in further evidence of the victim's extreme intoxication, defendant has failed to demonstrate that there is not a legitimate explanation for defense counsel's alleged neglect to further pursue this line of questioning ( see People v Foulkes , 117 AD3d 1176, 1177 [2014], lv denied 24 NY3d 1084 [2014]).

2019Insofar as he contends that defense counsel was ineffective in failing to seek the missing witness charge in a timely manner, we conclude that defendant "failed to establish the absence of a legitimate explanation for defense counsel's failure to do so" ( People v Myers [appeal No. 1], 87 AD3d 826, 828 [4th Dept 2011], lv denied 17 NY3d 954 [2011]).

2017Accordingly, defendant fails to establish the lack of a legitimate explanation for defense counsel’s actions (see People v Welch, 137 AD3d 1313, 1314 [2016], lv denied 27 NY3d 1141 [2016]; People v Vonneida, 130 AD3d 1322, 1322-1323 [2015], lv denied 26 NY3d 1093 [2015]).

2017Accordingly, defendant fails to establish the lack of a legitimate explanation for defense counsel’s actions (see People v Welch, 137 AD3d 1313, 1314 [2016], lv denied 27 NY3d 1141 [2016]; People v Vonneida, 130 AD3d 1322, 1322-1323 [2015], lv denied 26 NY3d 1093 [2015]).