| People v Montero |
| 2012 NY Slip Op 07835 [100 AD3d 1555] |
| November 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Carmen G. Montero, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered May 27, 2008. The judgment convicted defendant, upon a jury verdict, of rape in thesecond degree (two counts), promoting prostitution in the second degree (two counts) andendangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her, upon a jury verdict, oftwo counts each of rape in the second degree (Penal Law § 130.30 [1]) and promotingprostitution in the second degree (§ 230.30 [2]), and one count of endangering the welfareof a child (§ 260.10 [1]). Defendant failed to preserve for our review her contention thatshe was deprived of a fair trial by prosecutorial misconduct (see CPL 470.05 [2]; People v Beggs, 19 AD3d 1150,1151 [2005], lv denied 5 NY3d 803 [2005]), and we decline to exercise our power toreview that contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]).
Contrary to defendant's further contention, we conclude that she was not deprived of her rightto effective assistance of counsel. It is well settled that a defendant receives effective assistanceof counsel "[s]o long as the evidence, the law, and the circumstances of a particular case, viewedin totality and as of the time of the representation, reveal that the attorney provided meaningfulrepresentation" (People v Baldi, 54 NY2d 137, 147 [1981]). "Isolated errors in counsel'srepresentation generally will not rise to the level of ineffectiveness, unless the error is so seriousthat defendant did not receive a fair trial" (People v Henry, 95 NY2d 563, 565-566[2000] [internal quotation marks omitted]; see People v Flores, 84 NY2d 184, 188-189[1994]). Moreover, "[t]o prevail on a claim of ineffective assistance of counsel, it is incumbenton defendant to demonstrate the absence of strategic or other legitimate explanations" for defensecounsel's alleged shortcomings (People v Rivera, 71 NY2d 705, 709 [1988]; see People v Taylor, 1 NY3d 174,177 [2003]). Here, although defendant contends that there were errors in defense counsel'sperformance, she failed to demonstrate that defense counsel lacked strategic or other legitimatereasons for the challenged actions (see Baldi, 54 NY2d at 151). Additionally, defendanthas failed to demonstrate that those isolated errors were so serious that she did not receive a fairtrial (see Henry, 95 NY2d at 565-566).[*2]
Defendant also contends that Supreme Court erred infailing to instruct the jury that the trial testimony of her alleged accomplice must be corroboratedby independent evidence (see CPL 60.22 [1]). Defendant's contention is not preserved forour review because she did not object to the court's charge, nor did she request that anaccomplice charge be given (see CPL 470.05 [2]; People v Weeks, 15 AD3d 845, 846 [2005], lv denied 4NY3d 892 [2005]). "In any event, the failure of the court to give that instruction is of no moment,inasmuch as the testimony of the [accomplice] was in fact amply corroborated" (People v Peoples, 66 AD3d 1419,1419 [2009], lv denied 14 NY3d 843 [2010]). Present—Centra, J.P., Peradotto,Sconiers, Valentino and Martoche, JJ.