| People v Cioto |
| 2011 NY Slip Op 00104 [80 AD3d 875] |
| January 13, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MichaelCioto, Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Ulster County (McGrath, J.),rendered June 18, 2008, upon a verdict convicting defendant of the crimes of robbery in the firstdegree, robbery in the second degree, burglary in the first degree and grand larceny in the fourthdegree.
Defendant and two codefendants confronted the victim late at night; one of the codefendantsdisplayed a BB gun that looked like a real handgun and the trio then forced the victim into hisresidence. The victim was threatened, kicked and struck, his apartment was ransacked in a searchfor money and drugs, and his jewelry was stolen. Defendant was arrested the next day and,following a jury trial, he was convicted of robbery in the first degree, robbery in the seconddegree, burglary in the first degree and grand larceny in the fourth degree. He was then sentencedas a second violent felony offender to an aggregate prison term of 15 years, with five years ofpostrelease supervision.
On appeal, defendant argues that he was deprived of meaningful representation because hiscounsel pursued an intoxication defense that conceded defendant's presence at the scene of thecrime. In our view, however, counsel's attempt to establish that defendant was too intoxicated toform the requisite intent reflects the pursuit of a recognized defense strategy that wasappropriately tailored to the facts of the case (see People v Benevento, 91 NY2d 708,714[*2][1998]; People v Rodabaugh, 26 AD3d 598, 599-600 [2006]). Counselclearly and consistently developed this defense throughout the trial, and County Court found thatit had sufficient support in the record to give an intoxication instruction. In any event, a meredisagreement with strategy or tactics will not rise to the level of ineffective assistance of counsel(see People v Flores, 84 NY2d 184, 187 [1994]; People v Rivera, 71 NY2d 705,708-709 [1988]). Nor is defendant correct in claiming that counsel elicited prejudicialinformation regarding other charges pending against him. Rather, the elicited informationpertained to charges pending against the victim. Although defendant also complains that defensecounsel did not make any objections at trial, he has not identified any legitimate or sustainablepoints for objection (see People vCamerena, 42 AD3d 814, 815 [2007], lv denied 9 NY3d 921 [2007]). Viewingthe totality of the record, we conclude that defendant was provided with meaningfulrepresentation (see People v Caban,5 NY3d 143, 152 [2005]; People vMassey, 45 AD3d 1044, 1047-1048 [2007], lv denied 9 NY3d 1036 [2008];People v Rodabaugh, 26 AD3d at 600).
As for defendant's challenge to his sentence, we find no basis in the record for his claim thathe was penalized for exercising his right to trial (see People v Pena, 50 NY2d 400, 412[1980], cert denied 449 US 1087 [1981]; People v Bush, 75 AD3d 917, 920 [2010]). Given the nature of thecrimes and defendant's extensive criminal history, including that he is a second violent felonyoffender and was on parole at the time he committed these crimes, we find no extraordinarycircumstances that would cause us to reduce the sentence on the ground that it is harsh orexcessive (see People v Bush, 75 AD3d at 920; People v Massey, 45 AD3d at1048).
Peters, J.P., Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.