PEOPLE v. BRANDON (2003)

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. BRANDON C.P., Defendant-Appellant.

Decided: February 07, 2003

PRESENT: GREEN, J.P., HURLBUTT, BURNS, GORSKI, and HAYES, JJ.

Salvatore C. Adamo, Buffalo, for Defendant-Appellant. John C. Tunney, District Attorney, Bath, for Plaintiff-Respondent.

Defendant contends that he was denied the right to effective assistance of counsel because defense counsel failed to propose a suitable alternative to incarceration for defendant, a 19-year-old sex offender, after County Court indicated that it would consider a suitable alternative. The record establishes that, although defense counsel did in fact attempt to identify alternatives to incarceration, the facilities identified by defense counsel were not appropriate or defendant was ineligible for the programs offered there. Thus, we conclude that defense counsel's inability to propose a suitable alternative to incarceration does not constitute ineffective assistance of counsel (see generally People v. Newell, 271 A.D.2d 873, 874, 708 N.Y.S.2d 483, lv. denied 95 N.Y.2d 837, 713 N.Y.S.2d 144, 735 N.E.2d 424). The sentence is neither unduly harsh nor severe.

It is hereby ORDERED that the adjudication so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM:

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