People v Day

2008 NY Slip Op 04773 [51 AD3d 584]

May 29, 2008

Appellate Division, First Department

As corrected through Wednesday, July 16, 2008

The People of the State of New York,Respondent, v Phenroy Day, Jr., Appellant.

—[*1]Paul S. Brenner, New York, for appellant.

Phenroy Day, Jr., appellant pro se.

Robert T. Johnson, District Attorney, Bronx (Jacob Kaplan of counsel), forrespondent.

Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered July 24, 2003,convicting defendant, after a jury trial, of 10 counts of criminal possession of a weapon in thethird degree, two counts of criminal possession of a weapon in the fourth degree, and 12 countsof criminal sale of a firearm in the third degree, and sentencing him to an aggregate term of722/3 to 84 years, unanimously affirmed.

Defendant received effective assistance of counsel under the state and federal standards(see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland vWashington, 466 US 668 [1984]). "Counsel may not be expected to create a defense when itdoes not exist" (People v DeFreitas, 213 AD2d 96, 101 [1995], lv denied 86NY2d 872 [1995]). The record reveals that defense counsel, in consultation with his client,carefully reviewed the available strategic options, which were very limited in the face of theoverwhelming evidence of defendant's extensive trafficking in firearms. There is no indicationthat a different strategy would have had any hope of success.

We perceive no basis for reducing the sentence, which, we note, is deemed by operation oflaw to be a sentence of 20 years (see Penal Law § 70.30 [1] [e] [ii] [A]).

Defendant's pro se arguments are without merit. Concur—Lippman, P.J., Tom,Gonzalez and Buckley, JJ.