| People v Loret |
| 2008 NY Slip Op 09225 [56 AD3d 1283] |
| November 21, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David M.Loret, Appellant. |
—[*1] David M. Loret, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.),entered July 20, 2005. The judgment convicted defendant, upon a nonjury verdict, of murder inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trialof murder in the second degree (Penal Law § 125.25 [1]). We reject the contention ofdefendant in his main brief that he was denied effective assistance of counsel (see generallyPeople v Baldi, 54 NY2d 137, 147 [1981]). Defendant failed to meet his burden ofdemonstrating " 'the absence of strategic or other legitimate explanations' for [defense] counsel'salleged shortcomings" (People v Benevento, 91 NY2d 708, 712 [1998]). Indeed, defensecounsel's coherent strategy at trial to cast doubt on the forensic procedures used by theprosecution's witnesses is apparent from the record (see People v Hewlett, 71 NY2d 841,842 [1988]). We further conclude that defense counsel's failure to call a rebuttal expert witnessdid not constitute ineffective assistance of counsel absent a showing that the expert's testimonywould have assisted the trier of fact or that defendant was prejudiced by the absence of suchtestimony (see People v Brandi E., 38 AD3d 1218, 1219 [2007], lv denied 9NY3d 863 [2007]). Contrary to defendant's contention, defense counsel's comments at thesentencing hearing were neither adverse to defendant's position, nor amounted to defense counselbecoming a witness against defendant (cf. People v Lawrence, 27 AD3d 1091 [2006]).The remaining contentions of defendant in his main and pro se supplemental briefs are withoutmerit. Present—Scudder, P.J., Hurlbutt, Fahey, Peradotto and Pine, JJ.