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People v. Loret

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


November 21, 2008

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DAVID M. LORET, DEFENDANT-APPELLANT.

Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.), entered July 20, 2005. The judgment convicted defendant, upon a non-jury verdict, of murder in the second degree.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., HURLBUTT, FAHEY, PERADOTTO, AND PINE, JJ.

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

Memorandum

Defendant appeals from a judgment convicting him following a non-jury trial of murder in the second degree (Penal Law § 125.25 [1]). We reject the contention of defendant in his main brief that he was denied effective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147). Defendant failed to meet his burden of demonstrating " the absence of strategic or other legitimate explanations' for [defense] counsel's alleged shortcomings" (People v Benevento, 91 NY2d 708, 712). Indeed, defense counsel's coherent strategy at trial to cast doubt on the forensic procedures used by the prosecution's witnesses is apparent from the record (see People v Hewlett, 71 NY2d 841, 842). We further conclude that defense counsel's failure to call a rebuttal expert witness did not constitute ineffective assistance of counsel absent a showing that the expert's testimony would have assisted the trier of fact or that defendant was prejudiced by the absence of such testimony (see People v Brandi E., 38 AD3d 1218, 1219, lv denied 9 NY3d 863). Contrary to defendant's contention, defense counsel's comments at the sentencing hearing were neither adverse to defendant's position, nor amounted to defense counsel becoming a witness against defendant (cf. People v Lawrence, 27 AD3d 1091). The remaining contentions of defendant in his main and pro se supplemental briefs are without merit.

20081121

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