Opinion
2012-11-16
The PEOPLE of the State of New York, Respondent, v. Carmen G. MONTERO, Defendant–Appellant.
Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of Counsel), for Respondent.
Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting her, upon a jury verdict, of two counts each of rape in the second degree (Penal Law § 130.30[1] ) and promoting prostitution in the second degree (§ 230.30 [2] ), and one count of endangering the welfare of a child (§ 260.10[1] ). Defendant failed to preserve for our review her contention that she was deprived of a fair trial by prosecutorial misconduct ( seeCPL 470.05 [2]; People v. Beggs, 19 A.D.3d 1150, 1151, 796 N.Y.S.2d 826,lv. denied5 N.Y.3d 803, 803 N.Y.S.2d 32, 836 N.E.2d 1155), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
Contrary to defendant's further contention, we conclude that she was not deprived of her right to effective assistance of counsel. It is well settled that a defendant receives effective assistance of counsel “[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” ( People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). “Isolated errors in counsel's representation generally will not rise to the level of ineffectiveness, unless the error is so serious that defendant did not receive a fair trial” ( People v. Henry, 95 N.Y.2d 563, 565–566, 721 N.Y.S.2d 577, 744 N.E.2d 112 [internal quotation marks omitted]; see People v. Flores, 84 N.Y.2d 184, 188–189, 615 N.Y.S.2d 662, 639 N.E.2d 19). Moreover, “[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 defense counsel's alleged shortcomings ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;see People v. Taylor, 1 N.Y.3d 174, 177, 770 N.Y.S.2d 711, 802 N.E.2d 1109). Here, although defendant contends that there were errors in defense counsel's performance, she failed to demonstrate that defense counsel lacked strategic or other legitimate reasons for the challenged actions ( see Baldi, 54 N.Y.2d at 151, 444 N.Y.S.2d 893, 429 N.E.2d 400). Additionally, defendant has failed to demonstrate that those isolated errors were so serious that she did not receive a fair trial ( see Henry, 95 N.Y.2d at 565–566, 721 N.Y.S.2d 577, 744 N.E.2d 112).
Defendant also contends that Supreme Court erred in failing to instruct the jury that the trial testimony of her alleged accomplice must be corroborated by independent evidence ( seeCPL 60.22[1] ). Defendant's contention is not preserved for our review because she did not object to the court's charge, nor did she request that an accomplice charge be given ( seeCPL 470.05[2]; People v. Weeks, 15 A.D.3d 845, 846, 789 N.Y.S.2d 373,lv. denied4 N.Y.3d 892, 798 N.Y.S.2d 737, 831 N.E.2d 982). “In any event, the failure of the court to give that instruction is of no moment, inasmuch as the testimony of the [accomplice] was in fact amply corroborated” ( People v. Peoples, 66 A.D.3d 1419, 1419, 885 N.Y.S.2d 819,lv. denied14 N.Y.3d 843, 901 N.Y.S.2d 150, 927 N.E.2d 571).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.