| People v Cruz |
| 2009 NY Slip Op 02685 [61 AD3d 1111] |
| April 9, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jorge Cruz,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Matthew J. Sypniewski of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of Schenectady County (Hoye, J.),rendered June 30, 2006, upon a verdict convicting defendant of the crimes of criminal sale of acontrolled substance in the third degree (two counts) and criminal possession of a controlledsubstance in the third degree (two counts).
After defendant twice sold heroin to a confidential informant, he was indicted on two countseach of criminal possession of a controlled substance in the third degree and criminal sale of acontrolled substance in the third degree. A jury convicted him of all four charges, prompting thisappeal.
County Court did not err in permitting the People to amend the indictment. A court maygrant the People's application to amend the indictment as to matters such as the place of thecrime as long as the amendment does not change the prosecution's theory or prejudice thedefendant (see CPL 200.70 [1]). Here, the amendment changed the location from "at orin the vicinity" of a certain building to the vicinity of another building across the same street anda few houses down. The People quickly realized that the original indictment was correct and,only four days after the amendment was granted, successfully sought to amend the indictmentback to the place initially stated. This slight change of location for a drug sale in the street didnot change the prosecution's theory and did not prejudice defendant (see People v Ward, 27 AD3d 776,778 [2006], lv denied 7 NY3d 764 [2006]; People v Clapper, 123 AD2d 484, 485[1986], lv denied [*2]69 NY2d 825 [1987]). Thus, thecourt did not err in granting the People's two applications to amend the indictment.
Defendant was not denied the effective assistance of counsel. While the failure to present adefense that would be dispositive of the case could establish ineffective assistance, the recorddoes not support defendant's assertion that he had a valid alibi defense (see People v Sieber, 26 AD3d535, 536 [2006], lv denied 6 NY3d 853 [2006]). The record also fails to support hisclaim that counsel did not investigate that defense. Counsel indicated on the record that he couldnot locate two people who were initially identified as alibi witnesses, but that he had addressesfor two other witnesses and had met with them at his office. After the People rested, counselconsulted with defendant regarding defense strategy and informed County Court that, "aftergetting [defendant's] input, . . . and knowing the potential testimony of twowitnesses we had planned to call, we have decided we're not going to call those witnesses." Aprosecution witness, who testified that he was selling drugs with defendant at the time of thesecrimes, also testified that defendant planned to create a false alibi similar to the one outlined inthe alibi notice. Considering this testimony, the effective cross-examination of the prosecution'switnesses, and counsel's record assertions that he met with two alibi witnesses and discussedstrategy with defendant before opting not to call any witnesses, counsel's decision to not assertthe alibi defense was a reasonable strategy which should not be second-guessed (see People vBenevento, 91 NY2d 708, 712 [1998]; People v Damphier, 13 AD3d 663, 664-665 [2004]). Althoughultimately unsuccessful, counsel provided defendant with meaningful representation.
Peters, J.P., Rose, Lahtinen and Stein, JJ., concur. Ordered that the judgment is affirmed.