PEOPLE v. LORET (2008)

 Defendant appeals from a judgment convicting him following a nonjury 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 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   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 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584).   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 N.Y.2d 841, 842, 527 N.Y.S.2d 735, 522 N.E.2d 1033).   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 A.D.3d 1218, 1219, 834 N.Y.S.2d 895, lv. denied 9 N.Y.3d 863, 840 N.Y.S.2d 893, 872 N.E.2d 1199).   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 A.D.3d 1091, 812 N.Y.S.2d 199). The remaining contentions of defendant in his main and pro se supplemental briefs are without merit.

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

MEMORANDUM: