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

904
KA 09-02106
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ADAN D. GONZALEZ, ALSO KNOWN AS ADAM
GONZALES, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM G. PIXLEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (David
D. Egan, J.), rendered September 18, 2008. The judgment convicted
defendant, upon a jury verdict, of rape in the first degree, and
sexual abuse in the first degree (three counts).

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of one count of rape in the first degree (Penal Law § 130.35
[3]) and three counts of sexual abuse in the first degree (§ 130.65
[3]), defendant contends that he was denied effective assistance of
counsel. Specifically, defendant contends that defense counsel failed
to demand discovery of recorded jailhouse telephone conversations
between defendant and various witnesses that allegedly undercut
defendant’s alibi defense and thus failed to conduct a proper
investigation (see CPL 240.20). We reject that contention. Even if
defense counsel had sought discovery of those recordings, we conclude
that the People would not have been obligated to disclose them, and a
defendant is not denied effective assistance of counsel based on
defense counsel’s failure to seek relief to which defendant is not
entitled (see generally People v Taylor, 97 AD3d 1139, 1141). CPL
240.20 (1) (g) requires the prosecutor, upon a demand to produce by a
defendant, to disclose to the defendant and make available for
inspection or copying “[a]ny tapes or other electronic recordings
which the prosecutor intends to introduce at trial” (emphasis added).
Here, the recordings were not offered in evidence; rather, they were
used only for impeachment purposes or to refresh the recollection of
defendant’s witnesses (see People v Muller, 72 AD3d 1329, 1335-1336,
lv denied 15 NY3d 776; People v Farmer, 198 AD2d 805, 807, lv denied
83 NY2d 804; see generally CPL 240.20 [1] [g]). We note in any event
                                 -2-                           904
                                                         KA 09-02106

that, once the recordings were used for that purpose, defense counsel
appropriately suggested during defendant’s direct examination and
argued in summation that defendant’s recorded conversations could be
interpreted as attempts by defendant to refresh the memories of
defense witnesses and to prepare them for trial rather than attempts
to fabricate an alibi. 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).

     Finally, we conclude that the sentence is not unduly harsh or
severe.




Entered:   October 5, 2012                      Frances E. Cafarell
                                                Clerk of the Court
