Opinion
No. KA 05-02072.
November 21, 2008.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.), entered July 20, 2005. The judgment convicted defendant, upon a nonjury verdict, of murder in the second degree.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT.
DAVID M. LORET, DEFENDANT-APPELLANT PRO SE.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD OF COUNSEL), FOR RESPONDENT.
Before: Scudder, P.J., Hurlbutt, Fahey, Peradotto and Pine, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trial of murder in the second degree (Penal Law § 125.25). We reject the contention of defendant in his main brief that he was denied effective assistance of counsel ( see generally People v Baldi, 54 NY2d 137, 147). Defendant failed to meet his burden of demonstrating "`the absence of strategic or other legitimate explanations' for [defense] counsel's alleged shortcomings", ( People v Benevento, 91 NY2d 708, 712). Indeed, defense counsel's coherent strategy at trial to cast doubt on the forensic procedures used by the prosecution's witnesses is apparent from the record ( see People v Hewlett, 71 NY2d 841, 842). We further conclude that defense counsel's failure to call a rebuttal expert witness did not constitute ineffective assistance of counsel absent a showing that the expert's testimony would have assisted the trier of fact or that defendant was prejudiced by the absence of such testimony ( see People v Brandi E., 38 AD3d 1218, 1219, lv denied 9 NY3d 863). Contrary to defendant's contention, defense counsel's comments at the sentencing hearing were neither adverse to defendant's position, nor amounted to defense counsel becoming a witness against defendant ( cf. People v Lawrence, 27 AD3d 1091). The remaining contentions of defendant in his main and pro se supplemental briefs are without merit.