Valentino and Whalen, JJ. (dissenting). We respectfully dissent. We disagree with the majority’s conclusion that defendant was deprived of effective assistance of counsel, and we therefore would affirm the judgment of conviction.
First, we cannot agree with the majority that defense counsel was ineffective for failing to object when the prosecutor elicited testimony from a certain prosecution witness that defendant threatened her, despite County Court’s pretrial ruling precluding such testimony. In our view, defendant failed to meet his burden of establishing the absence of a strategic or other legitimate explanation for defense counsel’s failure to object to that testimony (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Rivera, 71 NY2d 705, 709 [1988]; see also People v Baker, 14 NY3d 266, 270-271 [2010]; People v Atkins, 107 AD3d 1465, 1465 [2013], lv denied 21 NY3d 1040 [2013]). For instance, defense counsel may have decided not to object in order to avoid focusing the jury’s attention on the testimony of the witness *1062(see People v Taylor, 1 NY3d 174, 177 [2003]); he may have sought to use the testimony of the witness to defendant’s advantage by calling attention to her inability to recall the threat, rather than requesting that the court strike her testimony and give a curative instruction; or, he may have made a tactical decision to allow the prosecutor to elicit testimony concerning the threat on direct examination rather than on rebuttal, if defense counsel suspected that he might be forced to open the door to the testimony on cross-examination of the witness.
We further disagree with the majority’s conclusion that defendant met his burden of establishing the absence of strategic or other legitimate explanations for defense counsel’s decision to present an alibi defense through the testimony of defendant’s girlfriend and mother (see generally Benevento, 91 NY2d at 712). We conclude that the cases relied upon by the majority — People v Cabrera (234 AD2d 557, 558 [1996]) and People v Long (81 AD2d 521, 521-522 [1981]) — do not compel reversal in the instant case. In those cases, the alibi witnesses testified to being with the respective defendants 18 to 24 hours after the time of the crimes therein. Consequently, in each case, the attorney for the defendant knew that such alibi testimony was not probative on the issue of defendant’s innocence.
Here, defense counsel called three witnesses whose testimony on direct examination established an alibi for defendant for the time of the crime. On cross-examination, the prosecutor showed a single discrepancy in the alibi defense, i.e., that the television show that defendant was purportedly watching, according to the testimony of one of the three alibi witnesses, was not airing at the time that the witness specified. We note, however, that the remaining two alibi witnesses did not tie their testimony to the television show. Thus, in our view, the prosecutor did not conclusively establish that the alibi was false; rather, that was an issue for the jury to resolve. Given those circumstances, we cannot conclude that defense counsel’s presentation of the alibi defense through the three alibi witnesses constitutes ineffective assistance of counsel (see People v Johnson, 30 AD3d 1042, 1043 [2006], lv denied 7 NY3d 790 [2006], reconsideration denied 7 NY3d 902 [2006]; People v Channer, 222 AD2d 1023, 1023 [1995]). Under the majority’s analysis, defense counsel would have to be prescient to know that the prosecutor was going to cross-examine one of the witnesses with respect to the television show and then establish that the witness was incorrect about the time that it aired. We refuse to hold defense counsel to such a standard.
*1063Defense counsel’s otherwise impressive representation contradicts defendant’s contention that he was denied effective assistance of counsel. Defense counsel thoroughly cross-examined the witnesses and presented a unified defense theory, with the result that the jury was compelled to deliberate for an extended period of time despite strong evidence incriminating defendant. Present — Fahey, J.P., Peradotto, Sconiers, Valentino and Whalen, JJ.