| People v Dombrowski |
| 2012 NY Slip Op 02972 [94 AD3d 1416] |
| April 20, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jeffrey R.Dombrowski, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in theFourth Judicial Department, from an order of the Erie County Court (Michael F. Pietruszka, J.),entered December 3, 2009. The appeal was held by this Court by order entered September 30,2011, decision was reserved and the matter was remitted to Erie County Court for furtherproceedings (87 AD3d 1267 [2011]). The proceedings were held and completed.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted following a nonjury trial of, inter alia, burglary inthe second degree (Penal Law § 140.25 [2]), and that judgment of conviction was affirmedon appeal (People v Dombrowski,55 AD3d 1358 [2008], lv denied 11 NY3d 924 [2009]). Defendant thereafter movedpursuant to CPL 440.10 and 440.20 to vacate the judgment and to set aside the sentence. Afterthat motion was summarily denied, we granted his CPL 460.15 application for a certificategranting leave to appeal. We note at the outset that, on appeal, defendant failed to raise anycontention concerning that part of his motion seeking to set aside the sentence, and we thusdeemed any issues with respect thereto abandoned (Dombrowski, 87 AD3d 1267, 1267).We concluded, however, that defendant was entitled to a hearing on the issue whether defensecounsel had a tactical reason for failing to call exculpatory witnesses, two of whom were presentin the courthouse during defendant's trial, and we remitted the matter to County Court for ahearing on that issue (id. at 1268).
At the hearing upon remittal, trial counsel discussed his reason for not calling thosewitnesses and, while in hindsight that decision may not have been the best strategy, it is wellsettled that disagreement over trial strategy is not a basis for a determination of ineffectiveassistance of counsel (see generally People v Benevento, 91 NY2d 708, 712-713[1998]; People v Baldi, 54 NY2d 137, 146 [1981]). We therefore conclude that, uponremittal, defendant failed to meet his burden of demonstrating the absence of a legitimate orstrategic basis for trial counsel's decision not to call those witnesses and has thus failed toestablish that he was denied effective assistance of counsel (see e.g. People v Collins, 85 AD3d 1678, 1679 [2011]; People v Gonzalez, 62 AD3d1263, 1265 [2009], lv denied 12 NY3d 925 [2009]; People v Roman, 60 AD3d 1416,1417-1418 [2009], lv denied 12 NY3d 928 [2009]).[*2]
As defendant correctly contends, however, the certificateof conviction mistakenly recites that he was sentenced as a second violent felony offender. Thesentencing minutes establish that defendant was sentenced as a "second felony offender," and thecertificate of conviction must therefore be amended to correct the clerical error (see generally People v Saxton, 32AD3d 1286, 1286-1287 [2006]). Present—Scudder, P.J., Smith, Centra, Fahey andPeradotto, JJ.