        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

388
KA 08-00143
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRIAN T. SMITH, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

BRIAN T. SMITH, DEFENDANT-APPELLANT PRO SE.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John J.
Connell, J.), rendered November 2, 2007. The judgment convicted
defendant, upon a jury verdict, of manslaughter in the first degree
and criminal possession of a weapon in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that the sentences
imposed shall run concurrently and as modified the judgment is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of manslaughter in the first degree (Penal Law §
125.20 [1]) and criminal possession of a weapon in the second degree
(§ 265.03 [former (2)]). We agree with defendant that the sentence
imposed for criminal possession of a weapon in the second degree must
run concurrently with the sentence imposed for manslaughter in the
first degree, and we therefore modify the judgment accordingly (see
People v Green, 72 AD3d 1601, 1601).

     We otherwise affirm the judgment. Viewing the evidence in light
of the elements of the crimes as charged to the jury (see People v
Danielson, 9 NY3d 342, 349), and affording appropriate deference to
the jury’s credibility determinations (see People v Hill, 74 AD3d
1782, 1782-1783, lv denied 15 NY3d 805), we conclude that the verdict
is not against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495). Defendant contends in his pro se
supplemental brief that he was denied effective assistance of counsel.
We reject that contention inasmuch as defendant failed to establish
the absence of a strategic or other legitimate explanation for defense
counsel’s alleged shortcomings (see generally People v Benevento, 91
                                 -2-                           388
                                                         KA 08-00143

NY2d 708, 712-713). Viewing the evidence, the law and the
circumstances of this case, in totality and as of the time of the
representation, we conclude that defendant received meaningful
representation (see generally People v Baldi, 54 NY2d 137, 147). The
further contention of defendant in his pro se supplemental brief that
County Court erred in issuing a protective order concealing the
identity of a witness is moot because that witness never testified at
trial (see People v Poventud, 300 AD2d 223, 223-224, lv denied 1 NY3d
578; People v Pena, 300 AD2d 132). In any event, defendant failed to
provide a factual record sufficient to permit us to review his
contention (see generally People v Kinchen, 60 NY2d 772, 773-774).

     The remaining contention of defendant in his main brief is not
preserved for our review (see CPL 470.05 [2]), and we decline to
exercise our power to review it as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]). We have reviewed
defendant’s remaining contention in his pro se supplemental brief and
conclude that it is lacking in merit.




Entered:   March 23, 2012                       Frances E. Cafarell
                                                Clerk of the Court
