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,
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.
Defendant appeals from a judgment convicting him following a non-jury trial of murder in the second degree (Penal Law § 125.25 ). 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.
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