Opinion
July 9, 1990
Appeal from the County Court, Orange County (Meehan, J.).
Ordered that the judgment is affirmed.
The defendant was convicted of murdering 74-year-old Hilda Terhune and taking sums of money from her by cashing forged checks against her bank account.
The defendant's assertion that he was improperly advised of his Miranda rights (see, Miranda v. Arizona, 384 U.S. 436) and therefore did not waive his right to have an attorney present during questioning by the police is contrary to the record which clearly demonstrates that Police Officer Ferraiuolo properly administered the Miranda warnings. The defendant acknowledged that he understood the warnings and waived his right to remain silent and to have a lawyer present.
The defendant further asserts that he requested an attorney, and that questioning by the police and District Attorney which took place after the request should have been suppressed. Even assuming, arguendo, that the defendant's statement that, "I believe I should get an attorney. I think I'll call Derrigo" constituted an unequivocal statement of his intention to retain counsel (see, People v. Hicks, 69 N.Y.2d 969), the record demonstrates that that statement was made long after his incriminating statements to both the police and the District Attorney were made. Therefore, this claim is without merit.
The defendant's assertion that the court erred by giving a no inference charge (see, CPL 300.10) is unpreserved for appellate review since he failed to object to the charge (CPL 470.05). In any event, the defendant was not deprived of a fair trial by the court's charge. Although the court, in the absence in a request, did instruct the jury that no negative inferences were to be derived from the defendant's decision not to testify (see, People v. Vereen, 45 N.Y.2d 856), the error was harmless (see, People v. Vereen, supra; People v. Carlton, 146 A.D.2d 641).
Furthermore, it is firmly established that a claim of ineffective assistance of counsel may not be premised solely upon trial counsel's unsuccessful employment of a trial strategy (see, People v. Sullivan, 153 A.D.2d 223, 227; People v. Baldi, 54 N.Y.2d 137). Viewing counsel's over-all performance in light of the strength of the prosecution's case and the applicable law, we conclude that the defendant was afforded meaningful representation at trial (see, People v. Rivera, 71 N.Y.2d 705; People v. Benn, 68 N.Y.2d 941).
We have reviewed the defendant's remaining contentions including those contained in his supplemental pro se brief, and find them to be unpreserved for appellate review or without merit (see, People v. McNair, 137 A.D.2d 626; People v. De Lucia, 20 N.Y.2d 275; see also, People v. De Bour, 40 N.Y.2d 210). Mangano, P.J., Rubin, Rosenblatt and Miller, JJ., concur.