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

139
KA 05-01142
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TYRONE PRESCOTT, DEFENDANT-APPELLANT.


KATHRYN FRIEDMAN, BUFFALO, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered March 7, 2005, which was affirmed by
memorandum and order of this Court dated October 2, 2009 (66 AD3d
1357). By order entered September 30, 2011 (87 AD3d 1413), this Court
denied defendant’s application for a writ of error coram nobis to
vacate, on the ground of ineffective assistance of appellate counsel,
the memorandum and order of this Court dated October 2, 2009. In an
order dated May 7, 2013, the Court of Appeals reversed the order of
this Court dated September 30, 2011, granted defendant’s application
for a writ of error coram nobis, vacated the memorandum and order of
this Court dated October 2, 2009 and remitted the matter to this Court
for a de novo determination (21 NY3d 925).

     Now, upon remittitur from the Court of Appeals,

     It is hereby ORDERED that, upon remittitur from the Court of
Appeals, the judgment so appealed from is unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of gang assault in the first degree (Penal Law
§ 120.07) and assault in the first degree (§ 120.10 [1]). We reject
defendant’s contention that he received ineffective assistance of
counsel. Defendant has failed to demonstrate “ ‘the absence of
strategic or other legitimate explanations’ ” for the decisions of
defense counsel to permit defendant to waive his right to a jury trial
(People v Caban, 5 NY3d 143, 152; see People v Boateng, 246 AD2d 749,
749-750, lv denied 91 NY2d 970), and not to allow him to testify (see
People v Collins, 85 AD3d 1678, 1679, lv denied 18 NY3d 993). Defense
counsel was not ineffective in failing to object to Supreme Court’s
decision to have defendant remain in handcuffs throughout the trial.
The court stated the reasons for its decision (see People v Best, 19
NY3d 739, 743-744; People v Tucker, 261 AD2d 877, 878, lv denied 94
NY2d 830), and we conclude that any objection by defense counsel would
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                                                         KA 05-01142

have had little or no chance of success (see People Gilpatrick, 63
AD3d 1636, 1637, lv denied 13 NY3d 835). Defense counsel was not
ineffective for failing to call an expert witness to testify regarding
the lack of blood found on defendant. “ ‘Defendant has not
demonstrated that such testimony was available, that it would have
assisted the [court] in its determination or that he was prejudiced by
its absence’ ” (People v Kilbury, 83 AD3d 1579, 1580, lv denied 17
NY3d 860; see People v Feeley, 23 AD3d 1130, 1130-1131, lv denied 6
NY3d 775). Viewing the evidence, the law and the circumstances of
this case in totality and as of the time of the representation, we
conclude that defense counsel provided meaningful representation (see
generally People v Baldi, 54 NY2d 137, 147). The sentence is not
unduly harsh or severe.




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
