Opinion
2014-09-26
The PEOPLE of the State of New York, Respondent, v. Kalvin M. SMITH, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI AND LINDLEY, JJ.
MEMORANDUM:
On appeal from a judgment convicting him following a jury trial of burglary in the second degree (Penal Law § 140.25[2] ), defendant contends that he was denied effective assistance of counsel on the ground that defense counsel, during the Sandoval hearing, conceded that defendant could be cross-examined, should he testify at trial, with respect to a 2004 conviction of criminal possession of stolen property in the fourth degree, a class E felony. We reject that contention. “To 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 allegedly deficient conduct (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698; see People v. Benevento, 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584). Here, defense counsel conceded an issue that, in any event, would likely have been decided against defendant ( see generally People v. Williams, 98 A.D.3d 1234, 1235, 951 N.Y.S.2d 281, lv. denied21 N.Y.3d 947, 968 N.Y.S.2d 10, 990 N.E.2d 144; People v. Robles, 38 A.D.3d 1294, 1295, 832 N.Y.S.2d 339, lv. denied8 N.Y.3d 990, 838 N.Y.S.2d 493, 869 N.E.2d 669), while at the same time arguing that the People should be precluded from using on cross-examination various other criminal convictions to impeach defendant's credibility. Supreme Court agreed in part with defense counsel and precluded cross-examination of defendant with respect to three other criminal convictions. Under the circumstances, we conclude that defendant failed to meet the requisite burden in support of his claim of ineffective assistance of counsel ( see Rivera, 71 N.Y.2d at 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).
Even assuming, arguendo, that defense counsel erred in making the limited Sandoval concession, we conclude that the single error was not so egregious as to deprive defendant of his right to a fair trial ( see generally People v. Turner, 5 N.Y.3d 476, 480, 806 N.Y.S.2d 154, 840 N.E.2d 123; People v. Cosby, 82 A.D.3d 63, 67, 916 N.Y.S.2d 689, lv. denied16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198). Viewed as a whole, the record establishes that defense counsel provided meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400; People v. Long, 96 A.D.3d 1492, 1494, 946 N.Y.S.2d 381, lv. denied19 N.Y.3d 1027, 953 N.Y.S.2d 560, 978 N.E.2d 112).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.