| People v Smith |
| 2012 NY Slip Op 02238 [93 AD3d 1345] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Brian T.Smith, Appellant. |
—[*1] Brian T. Smith, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John J. Connell, J.), renderedNovember 2, 2007. The judgment convicted defendant, upon a jury verdict, of manslaughter inthe first degree and criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby directing that the sentences imposed shall run concurrently and as modified the judgment isaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmanslaughter in the first degree (Penal Law § 125.20 [1]) and criminal possession of aweapon in the second degree (§ 265.03 [former (2)]). We agree with defendant that thesentence imposed for criminal possession of a weapon in the second degree must runconcurrently with the sentence imposed for manslaughter in the first degree, and we thereforemodify the judgment accordingly (seePeople v Green, 72 AD3d 1601, 1601 [2010]).
We otherwise affirm the judgment. Viewing the evidence in light of the elements of thecrimes as charged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), and affording appropriate deference to the jury'scredibility determinations (see People vHill, 74 AD3d 1782, 1782-1783 [2010], lv denied 15 NY3d 805 [2010]), weconclude that the verdict is not against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Defendant contends in his pro se supplemental briefthat he was denied effective assistance of counsel. We reject that contention inasmuch asdefendant failed to establish the absence of a strategic or other legitimate explanation for defensecounsel's alleged shortcomings (see generally People v Benevento, 91 NY2d 708,712-713 [1998]). Viewing the evidence, the law and the circumstances of this case, in totalityand as of the time of the representation, we conclude that defendant received meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]). The furthercontention of defendant in his pro se supplemental brief that County Court erred in issuing aprotective order concealing the identity of a witness is moot because that witness never testifiedat trial (see People v Poventud, 300 AD2d 223, 223-224 [2002], lv denied 1NY3d 578 [2003]; People v Pena, 300 AD2d [*2]132[2002]). In any event, defendant failed to provide a factual record sufficient to permit us toreview his contention (see generally People v Kinchen, 60 NY2d 772, 773-774 [1983]).
The remaining contention of defendant in his main brief is not preserved for our review(see CPL 470.05 [2]), and we decline to exercise our power to review it as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). We have revieweddefendant's remaining contention in his pro se supplemental brief and conclude that it is lackingin merit. Present—Smith, J.P., Peradotto, Carni and Sconiers, JJ.