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

866
KA 10-02084
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KALVIN M. SMITH, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered December 18, 2009. The judgment
convicted defendant, upon a jury verdict, of burglary in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of burglary in the second degree (Penal Law § 140.25 [2]),
defendant contends that he was denied effective assistance of counsel
on the ground that defense counsel, during the Sandoval hearing,
conceded that defendant could be cross-examined, should he testify at
trial, with respect to a 2004 conviction of criminal possession of
stolen property in the fourth degree, a class E felony. We reject
that contention. “To prevail on a claim of ineffective assistance of
counsel, it is incumbent on defendant to demonstrate the absence of
strategic or other legitimate explanations” for defense counsel’s
allegedly deficient conduct (People v Rivera, 71 NY2d 705, 709; see
People v Benevento, 91 NY2d 708, 712-713). Here, defense counsel
conceded an issue that, in any event, would likely have been decided
against defendant (see generally People v Williams, 98 AD3d 1234,
1235, lv denied 21 NY3d 947; People v Robles, 38 AD3d 1294, 1295, lv
denied 8 NY3d 990), while at the same time arguing that the People
should be precluded from using on cross-examination various other
criminal convictions to impeach defendant’s credibility. Supreme
Court agreed in part with defense counsel and precluded cross-
examination of defendant with respect to three other criminal
convictions. Under the circumstances, we conclude that defendant
failed to meet the requisite burden in support of his claim of
ineffective assistance of counsel (see Rivera, 71 NY2d at 709).
                                 -2-                           866
                                                         KA 10-02084

     Even assuming, arguendo, that defense counsel erred in making the
limited Sandoval concession, we conclude that the single error was not
so egregious as to deprive defendant of his right to a fair trial (see
generally People v Turner, 5 NY3d 476, 480; People v Cosby, 82 AD3d
63, 67, lv denied 16 NY3d 857). Viewed as a whole, the record
establishes that defense counsel provided meaningful representation
(see generally People v Baldi, 54 NY2d 137, 147; People v Long, 96
AD3d 1492, 1494, lv denied 19 NY3d 1027).




Entered:   September 26, 2014                  Frances E. Cafarell
                                               Clerk of the Court
