| People v Coley |
| 2017 NY Slip Op 02264 [148 AD3d 1651] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Jesse K.Coley, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (William G. Pixley of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.), renderedAugust 28, 2014. The judgment convicted defendant, upon a jury verdict, of burglary in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofburglary in the second degree (Penal Law § 140.25 [2]). Defendant failed topreserve for our review his contention that the prosecutor violated County Court's Sandovalruling during rebuttal testimony and improperly violated the collateral evidence rule with thattestimony. In any event, in light of the overwhelming evidence of defendant's guilt, there is nosignificant probability that defendant otherwise would have been acquitted, and thus we concludethat any error is harmless (see generally People v Crimmins, 36 NY2d 230, 241-242[1975]).
Defendant also failed to preserve for our review his contention that the prosecutor violatedCPL 240.43 by failing to provide notice of uncharged Sandoval material that was used toimpeach defendant's credibility during cross-examination. In any event, we nevertheless concludethat the contention is without merit. The prosecutor cross-examined defendant with respect tostatements he allegedly made to another inmate concerning the offense for which defendant wascharged, and not concerning a prior offense (see People v Dixon, 228 AD2d 175, 175[1996], lv denied 86 NY2d 1068 [1995]).
We reject defendant's contention that he was denied effective assistance of counsel basedupon defense counsel's failure to object to the People's alleged violation of CPL 240.43. "Adefendant is not denied effective assistance of trial counsel merely because counsel does notmake a[n] . . . argument that has little or no chance of success" (People v Stultz, 2 NY3d 277, 287[2004], rearg denied 6 NY3d 702 [2005]). We further conclude that defense counsel'sfailure to object to the rebuttal testimony was not " 'so egregious and prejudicial' as todeprive defendant of a fair trial" (Peoplev Cummings, 16 NY3d 784, 785 [2011], cert denied 565 US 862 [2011]), andthat, when viewed in totality, defense counsel provided meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]). Present—Whalen, P.J., Smith,Centra, Curran and Scudder, JJ.