| People v Hammond |
| 2013 NY Slip Op 04371 [107 AD3d 1156] |
| June 13, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Donald H. Hammond, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Chemung County(Hayden, J.), rendered June 17, 2011, upon a verdict convicting defendant of the crime ofsexual abuse in the first degree.
After a jury trial, defendant was convicted of sexual abuse in the first degree andsentenced to four years in prison, followed by 10 years of postrelease supervision. Henow argues that the cumulative effect of three purported errors by his attorney deprivedhim of the effective assistance of counsel. We disagree and affirm the judgment ofconviction.
To establish that he did not receive the effective assistance of counsel, defendantbears the burden of showing that counsel failed to provide meaningful representation andthat there is an " 'absence of strategic or other legitimate explanations' for counsel'sallegedly deficient conduct" (People Caban, 5 NY3d 143, 152 [2005], quotingPeople v Rivera, 71 NY2d 705, 709 [1988]; accord People v McRobbie, 97 AD3d 970, 972 [2012],lv denied 20 NY3d 934 [2012]). Here, two of the alleged errors—counsel'swaiver of a Huntley hearing in return for the early receipt of trial Rosariomaterial, as well as his decision not to request an intoxication charge as it wasinconsistent with the defense presented at trial—both constituted legitimatestrategic choices under the circumstances. Defendant's additional claim—thatcounsel's failure to object to certain testimony gave rise to inferential hearsay andviolated his right of confrontation—is not supported by the record. On thecontrary, the record discloses that counsel provided meaningful [*2]representation by, among other things, presenting cogentopening and closing statements, making appropriate motions before and during trial,thoroughly cross-examining the People's witnesses and presenting a reasonable defensetheory (see People vWiltshire, 96 AD3d 1227, 1228-1229 [2012]; People v Buchanan, 95 AD3d1433, 1436-1437 [2012]).
Rose, J.P., Stein and Spain, JJ., concur. Ordered that the judgment is affirmed.