         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
60
KA 09-01503
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARCUS MILLER, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, 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 21, 2009. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the third degree and criminal sale of a controlled
substance in the third degree.

     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 criminal possession of a controlled substance
in the third degree (Penal Law § 220.16 [1]) and criminal sale of a
controlled substance in the third degree (§ 220.39 [1]). Defendant
contends that he was denied effective assistance of counsel based on
various alleged errors committed by defense counsel. We reject that
contention. Defendant failed to demonstrate that defense counsel’s
failure to meet with two potential witnesses or to seek the
authorization of County Court to obtain the assistance of a private
investigator pursuant to County Law § 722-c to locate those potential
witnesses was not a reasonable and legitimate trial strategy under the
circumstances of this case (see generally People v Benevento, 91 NY2d
708, 712; People v Rivera, 71 NY2d 705, 709; People v Morgan, 77 AD3d
1419). Defense counsel was in possession of written statements from
those two potential witnesses and could have concluded based on the
testimony of the People’s witnesses that the testimony of those two
potential witnesses would not be helpful but, rather, possibly would
be harmful to the defense (see generally People v Safford, 74 AD3d
1835, 1837; People v Fields, 63 AD3d 1626, 1626-1627, lv denied 13
NY3d 835). The fact that defense counsel made a general rather than a
specific motion for a trial order of dismissal also does not
constitute ineffective assistance of counsel where, as here, a
specific motion would have had little or no chance of success (see
People v Martinez, 73 AD3d 1432, lv denied 15 NY3d 807; People v
                                 -2-                            60
                                                         KA 09-01503

Hunter, 70 AD3d 1388, 1389, lv denied 15 NY3d 751; see generally
People v Caban, 5 NY3d 143, 152). Indeed, we note that defendant does
not contend on appeal that the evidence is legally insufficient to
support the conviction. Also contrary to defendant’s contention,
defense counsel’s strategy in informing the jurors that he was “not
going to put [defendant] on the stand” did not constitute ineffective
assistance (see People v Riley, 292 AD2d 822, 823, lv denied 98 NY2d
640). We have examined defendant’s remaining allegations of
ineffective assistance of counsel and conclude that they lack merit
(see generally People v Baldi, 54 NY2d 137, 147).

     Defendant failed to preserve for our review his further
contention that he was penalized for exercising his right to a jury
trial on the ground that he received a harsher sentence than that
proposed as part of a plea agreement (see People v Dorn, 71 AD3d 1523;
People v Lombardi, 68 AD3d 1765, lv denied 14 NY3d 802). In any
event, his contention 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 . . ., and there is no
evidence in the record that the sentencing court was vindictive”
(Lombardi, 68 AD3d at 1765-1766 [internal quotation marks omitted];
see People v Chappelle, 14 AD3d 728, 729, lv denied 5 NY3d 786; see
generally People v Pena, 50 NY2d 400, 411-412, rearg denied 51 NY2d
770, cert denied 449 US 1087). Finally, the sentence is not unduly
harsh or severe.




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