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

73
KA 14-01340
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LEON C. BLOOM, JR., ALSO KNOWN AS LEON BLOOM,
DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (MELISSA CIAFRINI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered July 21, 2014. The judgment convicted
defendant, after a nonjury trial, of burglary in the second degree and
criminal obstruction of breathing or blood circulation.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by amending the order of protection to
delete the no contact provisions with respect to defendant’s son and
as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
after a nonjury trial of burglary in the second degree (Penal Law
§ 140.25 [2]) and criminal obstruction of breathing or blood
circulation (§ 121.11). County Court issued stay away and no contact
orders of protection against defendant with respect to both the victim
and defendant’s son, to remain effective until October 9, 2031.
Defendant failed to preserve for our review his contention that the
People committed a Brady violation by failing to disclose the notes of
a police officer who interviewed the victim (see People v Tobias, 273
AD2d 925, 926, lv denied 95 NY2d 908), 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]). By failing to seek a sanction or
raise the issue again after the court deferred discussion of the
failure to disclose the notes, “any claim for relief defendant might
have as a result of a possible violation of his Rosario rights must be
deemed abandoned” (People v Graves, 85 NY2d 1024, 1027).

     We reject defendant’s contention that he was denied effective
assistance of counsel. Although defense counsel did not understand
the necessity and procedure for laying a foundation for the admission
of Facebook messages exchanged between defendant and the victim, that
                                 -2-                               73
                                                            KA 14-01340

error did not deprive defendant of effective assistance of counsel
(see People v Newton, 138 AD2d 415, 416, lv denied 72 NY2d 864).
Defense counsel was not ineffective with respect to the failure to
preserve defendant’s Rosario and Brady claims for appellate review
inasmuch as deprivation of appellate review does not establish
ineffective assistance of counsel in the absence of a showing that the
underlying contention “would be meritorious upon appellate review”
(People v Bassett, 55 AD3d 1434, 1438, lv denied 11 NY3d 922). Here,
defendant failed to demonstrate that his underlying contention would
be meritorious because he failed to establish that there was a
“reasonable possibility” that the officer’s personal interview notes
would have changed the result of the proceedings (CPL 240.75; see
People v Fuentes, 12 NY3d 259, 263, rearg denied 13 NY3d 766; People v
Gayden [appeal No. 2], 111 AD3d 1388, 1389). We have considered
defendant’s remaining claims of ineffective assistance of counsel and
conclude that they are without merit, and that defendant received
“meaningful representation” (People v Baldi, 54 NY2d 137, 147).

     Viewing the evidence in light of the elements of the crimes in
this nonjury trial (see People v Danielson, 9 NY3d 342, 349), we
conclude that the verdict is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495).

     Defendant contends that the court abused its discretion with
respect to the stay away, no contact and durational provisions of the
order of protection regarding his son born of the marriage with the
victim. Defendant’s contentions with respect to the stay away and
durational provisions of the order are not preserved for our review
because defendant failed to make a specific objection thereto at the
time of sentencing (see People v Nieves, 2 NY3d 310, 315). We agree
with defendant, however, that the no contact provisions of the order
with respect to his son are unwarranted under the circumstances. We
therefore modify the judgment by amending the order of protection to
delete the provisions prohibiting defendant from communicating with or
contacting the subject child by mail, telephone, email, voicemail or
other electronic means.

     Finally, the sentence is not unduly harsh or severe.




Entered:   April 28, 2017                       Frances E. Cafarell
                                                Clerk of the Court
