Argued November 20, 2003; decided December 23, 2003

People v Taylor, 298 AD2d 112, affirmed.

Read, J.

A jury convicted defendant of intentional second-degree murder (Penal Law § 125.25 [1]) for his role in the killing of a rival drug dealer. Defendant now claims that he received ineffective assistance of trial counsel in contravention of the State and Federal Constitutions (US Const 6th Amend; NY Const, art I, § 6). We conclude that the constitutional standard has been met because, in light of the circumstances of this particular case, defense counsel's actions were within the reasonably objective range of performance (see Strickland v Washington, 466 US 668, {**1 NY3d at 176}687-688 [1984]), and she provided defendant with meaningful representation (People v Baldi, 54 NY2d 137, 147 [1981]). [*2]

At trial, the People relied primarily upon the testimony of defendant's cousin, who informed the jury that she overheard defendant and his partner plan the murder; saw them carry it out; and was present when they discussed the crime immediately afterward. Defendant produced one alibi witness, the mother of his daughter. Choosing to believe the cousin rather than the alibi witness, the jury convicted defendant. The Appellate Division affirmed, and a Judge of this Court granted defendant leave to appeal.

Defendant claims ineffective assistance of counsel because his attorney failed to object to certain questions that the prosecutor asked when cross-examining the alibi witness, and also failed to object to part of the prosecutor's summation. The record discloses, however, that "[d]efense counsel cross-examined key prosecution witnesses, presented . . . an alibi defense, and gave a detailed summation highlighting potential infirmities in the People's evidence" (People v Ryan, 90 NY2d 822, 823 [1997]). Further, while the prosecutor's conduct was indefensible, defendant has failed " 'to demonstrate the absence of strategic or other legitimate explanations' for counsel's alleged shortcomings" (People v Benevento, 91 NY2d 708, 712 [1998], quoting People v Rivera, 71 NY2d 705, 709 [1988]; see also People v Tonge, 93 NY2d 838, 840 [1999]).^[FN*]

Defense counsel presented a coherent, cogent defense. In her opening remarks, she told the jury that the People's main witness (defendant's cousin) was not to be believed because she came {**1 NY3d at 177}forward more than three years after the murder and solely to curry favor with the police on an unrelated charge that had been lodged against her. Defense counsel carried this theme forward, cross-examining the witness so as to highlight her bad behavior and prior bad [*3]acts; she reprised the cousin's suggested motive to lie on summation. Moreover, defense counsel participated actively in jury selection, consulting with defendant at various points; objected vigorously, and often successfully, during the testimony of all the People's witnesses; cross-examined the People's witnesses thoroughly; participated intelligently in numerous bench conferences and the jury charge conference; and made numerous objections during the prosecutor's summation.

Defense counsel was not ineffective just because her efforts to discredit defendant's cousin proved futile. "An attorney who presents a well-grounded but unsuccessful defense will not later be held to have provided ineffective assistance of counsel, and thus a defendant will not be entitled to a vacatur of his conviction on such basis" (People v Baldi, 54 NY2d at 140). In addition, "when viewed in light of the trial as a whole, the actions of defense counsel of which defendant now complains [the failure to raise objections] could be attributed to tactical trial decisions" (People v Ryan, 90 NY2d at 823-824). The decision not to object to prosecutorial actions may simply "reflect 'a reasonable and legitimate strategy under the circumstances and evidence presented' " (People v Tonge, 93 NY2d at 840, quoting People v Benevento, 91 NY2d at 713). Defense counsel objected almost 50 times during the prosecutor's cross-examination of the alibi witness. She may have concluded that further objections would serve only to annoy the trial court or—more importantly—the jury; perhaps she did not wish to risk focusing the jury's attention further on unhelpful evidence. Additionally, to the extent the trial prosecutor's acts were as offensive as defendant now claims (and some were), defense counsel might have reasonably calculated that, if allowed sufficient latitude, he would alienate the jury.

As we have repeatedly stated, "[t]o 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 counsel's [supposed] failure[s]" (People v Rivera, 71 NY2d at 709). As defendant here has failed to carry his burden, "it will be presumed that counsel acted in a competent manner and exercised professional judgment" (id.){**1 NY3d at 178} by not lodging objections at the points where defendant now claims they should have been raised.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt and Graffeo concur.

Order affirmed.