Opinion
March 16, 1971
Appeal from a judgment of the County Court of St. Lawrence County, rendered March 5, 1970, upon a verdict convicting defendant of the crimes of burglary in the third degree and petit larceny. Defendant was sentenced to an indeterminate term with a maximum of 5 1/2 years on the conviction for burglary third degree and to one year in the county jail on the petit larceny conviction. The indictment alleged that appellant, together with Mary Ann Harp and Joseph Burns, committed a burglary at a diner in Ogdensburg, New York, the proceeds of which included two bottles of liquor, cigarettes and some money. The trial court charged that Mary Ann Harp, who testified on behalf of the People, was an accomplice of the appellant as a matter of law. On this appeal, appellant contends that her testimony was not corroborated. An examination of the record discloses that this contention is without merit. Mary Ann Harp testified in detail to the commission of the burglary. The corroborative evidence was provided by the testimony of the witness Leo Tynon. He testified that on the evening following the burglary, appellant asked him to drive him to Canton, promising Tynon a half a gallon of gin, a quart of scotch and a carton of cigarettes. He then drove appellant, Mary Ann Harp and Burns to a garage where the stolen articles were cached. Appellant further contends that he was deprived of a fair trial. At sentencing, when asked if he had any legal cause to show why sentence should not be pronounced against him, appellant informed the court that he desired to call witnesses whom his attorney refused to subpoena. There is no merit in this contention. At no time during the trial did the appellant complain to the court about the conduct of his defense. He replied in the negative when asked if he had ever requested the court to subpoena witnesses. Nor has he ever disclosed the names of witnesses whom he desired to subpoena, or the nature of their testimony. Furthermore, the decision of defense counsel as to the selection of witnesses constitutes the "exercise of judgment in trial tactics" and affords no basis for postconviction relief. (See People v. Brown, 7 N.Y.2d 359.) Judgment affirmed. Herlihy, P.J., Reynolds, Greenblott, Cooke and Simons, JJ., concur.