         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
128
KA 10-00024
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TROY T. POWELL, DEFENDANT-APPELLANT.


AMDURSKY, PELKY, FENNELL & WALLEN, P.C., OSWEGO (COURTNEY S. RADICK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DONALD H. DODD, DISTRICT ATTORNEY, OSWEGO (MICHAEL G. CIANFARANO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered May 11, 2009. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree and
petit larceny.

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

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of burglary in the second degree (Penal Law §
140.25 [2]) and petit larceny (§ 155.25). Contrary to the contention
of defendant, he was not denied effective assistance of counsel based
on defense counsel’s allegedly improper cross-examination of a police
investigator regarding identification evidence and procedures (see
generally People v Baldi, 54 NY2d 137, 147). Defendant’s contention
involves a “ ‘simple disagreement[] with strategies, tactics or the
scope of possible cross-examination, weighed long after the trial,’
and thus [is] insufficient to establish ineffective assistance of
counsel” (People v Adams, 59 AD3d 928, 929, lv denied 12 NY3d 813,
quoting People v Flores, 84 NY2d 184, 187). We further conclude that
defense counsel’s failure to call an expert witness did not constitute
ineffective assistance of counsel inasmuch as defendant failed to
demonstrate “that the expert’s testimony would have assisted the trier
of fact or that defendant was prejudiced by the absence of such
testimony” (People v Loret, 56 AD3d 1283, lv denied 11 NY3d 927; see
People v Brandi E., 38 AD3d 1218, lv denied 9 NY3d 863). Defendant
also failed to demonstrate a lack of strategic or other legitimate
explanations for defense counsel’s request for a circumstantial
evidence charge, his request to charge criminal trespass as a lesser
included offense of burglary or his failure to request a charge of
criminal possession of stolen property (see People v Benevento, 91
NY2d 708, 712-713; People v Ramkissoon, 36 AD3d 834). “[T]he
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                                                         KA 10-00024

evidence, the law, and the circumstances of [this] case, viewed in
totality and as of the time of the representation, reveal that
[defense counsel] provided meaningful representation” (Baldi, 54 NY2d
at 147).

     Defendant’s further contention that he was punished for
exercising his right to a trial is without merit. “[T]he mere fact
that a sentence imposed after trial is greater than that offered in
connection with plea negotiations is not proof that defendant was
punished for asserting his right to trial” (People v Brink, 78 AD3d
1483, ___ [internal quotation marks omitted]), and “ ‘the record shows
no retaliation or vindictiveness against . . . defendant for electing
to proceed to trial’ ” (People v Dorn, 71 AD3d 1523, 1524; see People
v Brown, 67 AD3d 1427, lv denied 14 NY3d 839). The sentence imposed
in this case is not unduly harsh or severe.

     Defendant failed to preserve for our review his contention that
County Court abused its discretion by prohibiting a plea bargain after
a certain date (see CPL 470.05 [2]). In any event, that contention is
without merit. The record demonstrates that defendant had sufficient
time to consider the People’s plea offer and that the plea bargaining
process was fair (cf. People v Compton, 157 AD2d 903, lv denied 75
NY2d 918; see generally People v Selikoff, 35 NY2d 227, 233-234, cert
denied 419 US 1122; People v Parker, 271 AD2d 63, 68, lv denied 95
NY2d 967).




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
