                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 12, 2015                     105205
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

MICHAEL TAYLOR,
                    Appellant.
________________________________


Calendar Date:    January 16, 2015

Before:   Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ.

                              __________


     Arthur G. Dunn, Troy, for appellant.

      D. Holley Carnright, District Attorney, Kingston (Shirley
Huang of counsel), for respondent.

                              __________


Devine, J.

      Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered July 6, 2012, upon a verdict convicting
defendant of the crimes of criminal sale of a controlled
substance in the third degree (two counts) and criminal
possession of a controlled substance in the third degree (two
counts).

      Defendant was indicted on two counts of criminal sale of a
controlled substance in the third degree and two counts of
criminal possession of a controlled substance in the third degree
after he sold crack cocaine to an undercover police investigator
twice on the same day. Following a jury trial, defendant was
convicted as charged and sentenced to an aggregate prison term of
15 years. Defendant now appeals.
                              -2-                105205

      We reject defendant's contention that the judgment of
conviction must be reversed and a new trial ordered because he
was denied the effective assistance of counsel. A claimed
violation of the constitutional right to the effective assistance
of counsel will not survive judicial scrutiny "'[s]o long as the
evidence, the law, and the circumstances of a particular case,
viewed in totality and as of the time of the representation,
reveal that the attorney provided meaningful representation'"
(People v Benevento, 91 NY2d 708, 712 [1998], quoting People v
Baldi, 54 NY2d 137, 147 [1981]; see People v Wiltshire, 96 AD3d
1227, 1229 [2012], lv denied 22 NY3d 1204 [2014]). In
particular, after defendant's counsel failed to ask the
investigator during cross- examination if he performed field
testing on the substances that he purchased from defendant,
County Court denied defendant's subsequent request to admit the
investigator's purportedly inconsistent grand jury testimony due
to counsel's failure to lay a foundational basis. In particular,
during his trial testimony, the investigator explained how he
processed the drugs after he purchased them from defendant, but
made no specific mention of field testing the substances. The
investigator's testimony, however, was not inconsistent with his
prior grand jury testimony, during which he allegedly stated that
he had field tested the drugs that defendant had sold to him and,
therefore, there was no testimony that could be used for
impeachment purposes. Moreover, although counsel's failure to
pursue the issue of field testing while questioning the
investigator was not a tactical decision, we do not agree that
one isolated misstep of this nature was so "egregious and
prejudicial as to compromise defendant's right to a fair trial"
(People v Caban, 5 NY3d 143, 152 [2005]; accord People v Ford,
110 AD3d 1368, 1370 [2013], lv denied 24 NY3d 1043 [2014]).

      As to defendant's assertion that the sentence imposed was
unduly harsh and excessive, County Court sentenced defendant to
serve two concurrent prison terms of 12 years for the criminal
possession and criminal sale convictions stemming from the first
of two drug sales, which were set to run consecutively with the
two concurrent prison terms of three years for the criminal sale
and criminal possession convictions resulting from the second
drug sale. Defendant argues that, because both drug sales
involved small quantities of drugs and occurred within a short
                              -3-                  105205

period of time, the court abused its discretion in imposing
consecutive sentences. We disagree. While the drug sales
occurred in a somewhat "close temporal proximity," they were
separate criminal transactions (People v Perry, 70 AD3d 1063,
1065 [2010], lv denied 14 NY3d 804 [2010]; see People v Brown, 80
NY2d 361, 363-364 [1992]). Therefore, given the absence of
extraordinary circumstances or an abuse of discretion, we decline
to exercise our interest of justice jurisdiction to modify
defendant's sentences (compare People v McCombs, 18 AD3d 888,
890-891 [2005]; People v Holmes, 304 AD2d 1043, 1045 [2003], lv
denied 100 NY2d 642 [2003]).

     Lahtinen, J.P., Egan Jr. and Lynch, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
