| People v Ildefonso |
| 2017 NY Slip Op 03803 [150 AD3d 1388] |
| May 11, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Benjamin C. Ildefonso, Appellant. |
O'Brien & Wood, PLLC, Albany (Kevin K. O'Brien of counsel), for appellant.
John L. Hubbard, District Attorney, Delhi (Sean T. Becker of counsel), for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Delaware County (Lambert,J.), rendered May 9, 2013, upon a verdict convicting defendant of the crime of criminal sale of acontrolled substance in the fourth degree (three counts).
Based on allegations that, in February 2012, defendant sold narcoticpreparations—dihydrocodeinone with acetaminophen—to a confidential informant(hereinafter CI) during three controlled buy operations, defendant was charged by indictmentwith three counts of criminal sale of a controlled substance in the fourth degree. After a jury trial,he was convicted as charged. Subsequently, he was sentenced on each conviction to four years inprison, to be followed by one year of postrelease supervision, with the sentences to be servedconsecutively. Defendant appeals, and we affirm.
Defendant was not deprived of the effective assistance of counsel.[FN*] To prevail on an ineffective assistance ofcounsel claim under the NY Constitution, a defendant bears the burden of establishing thatdefense counsel deprived him or her of a fair trial by providing less than [*2]meaningful representation (see People v Heidgen, 22 NY3d 259, 278 [2013]; People v Thomas, 105 AD3d1068, 1071 [2013], lv denied 21 NY3d 1010 [2013]). A defendant's criticisms ofcounsel must amount to more than "a simple disagreement with [counsel's] strategies, tactics orthe scope of possible cross-examination" (People v Flores, 84 NY2d 184, 187 [1994]; People v Wright, 139 AD3d 1094,1101 [2016], lv denied 28 NY3d 939 [2016]). A defendant must establish that "strategicor other legitimate explanations" do not exist to explain defense counsel's perceived inadequacies(People v Duffy, 119 AD3d1231, 1234 [2014] [internal quotation marks and citation omitted], lv denied 24NY3d 1043 [2014]; see People vThorpe, 141 AD3d 927, 934-935 [2016], lv denied 28 NY3d 1031 [2016])."Meaningful representation is a flexible concept and requires only that counsel's efforts reflectreasonable competence, not perfect representation" (People v Gokey, 134 AD3d 1246, 1247 [2015] [internal quotationmarks and citation omitted], lv denied 27 NY3d 1069 [2016]).
Initially, although defendant contends that defense counsel should have made a more specificrequest for a suppression hearing—beyond counsel's general request "for a probable causehearing"—he offers no explanation of what specifically defense counsel should havesought to suppress and he does not contend that he had even a colorable claim that he wasentitled to the suppression of any evidence. Accordingly, defendant fails to establish the lack of alegitimate explanation for defense counsel's actions (see People v Welch, 137 AD3d 1313, 1314 [2016], lvdenied 27 NY3d 1141 [2016]; People v Vonneida, 130 AD3d 1322, 1322-1323 [2015], lvdenied 26 NY3d 1093 [2015]).
Next, although defendant asserts that counsel's opening statement illustrates her lack of acoherent strategy, we disagree. Notably, defense counsel drew the jury's attention to theimportance of the credibility of the CI who would testify against defendant and to the importanceof the evidence as to whether and how the CI was searched before the controlled buys in order toestablish that he did not already have drugs in his possession. Although defendant now arguesthat defense counsel should have gone into much greater detail as to these and other topics, wecannot say that the preference for a concise opening statement establishes a lack of a legitimatestrategy (see People v Aiken, 45 NY2d 394, 400 [1978]; People v Rose, 307AD2d 270, 271 [2003]).
Likewise, defendant's challenge to defense counsel's choice not to conduct cross-examinationof two police officers who played minimal roles in one of the controlled buys does not establish alack of a legitimate strategy (see Peoplev Pottorff, 145 AD3d 1095, 1098 [2016]; People v Cancer, 16 AD3d 835, 840 [2005], lv denied 5NY3d 826 [2005]). Moreover, we find no basis in the record to conclude that defense counselshould have known that the People had failed to turn over certain Rosario materials priorto testimony that revealed the existence of such materials, at which point defense counselsuccessfully moved to compel the production of said materials.
More generally, we note that defense counsel made numerous successful objections andconducted cross-examination that drew attention to the CI's motivation to lie—at one pointeliciting from the CI the admission that he would "do anything" to avoid his outstanding burglarycharge. Counsel's cross-examinations also drew attention to the absence of proof that searcheshad been conducted of the CI that would have excluded the possibility that he had brought thedrugs with him, secreted on his person, that he subsequently claimed to have purchased fromdefendant. Moreover, counsel gave a lengthy closing statement that, reiterating the themes sheintroduced in her opening statement, focused on how certain facts essential to the People'scase—that defendant had been in the house where the alleged buys took place and that thedrugs were provided by him—relied solely on the CI's unreliable testimony. Counsel alsoreminded the jury [*3]that the CI had "testified that he w[ould] doanything" in order to avoid his own incarceration. Considering the representation as a whole,defendant fails to establish that he was deprived of meaningful representation (see People v Bowman, 139 AD3d1251, 1253 [2016], lv denied 28 NY3d 927 [2016]; People v Henry, 129 AD3d 1334,1337 [2015], lv denied 26 NY3d 930 [2015]).
Finally, we disagree with defendant that his sentence is harsh and excessive. Givendefendant's criminal history, we find no abuse of discretion or extraordinary circumstances thatwould warrant modification of his sentence (see People v Souffrant, 104 AD3d 992, 993 [2013], lvdenied 21 NY3d 1010 [2013]). Defendant's remaining contentions have been considered andare without merit.
Peters, P.J., Egan Jr., Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:After the jury found defendantguilty, and prior to sentencing, defendant obtained new counsel. Defendant's ineffectiveassistance of counsel contentions are directed at the actions taken by the attorney that representedhim through the completion of the jury trial.