PEOPLE v. WILLIS (1999)

 The contention of defendant that Supreme Court improperly disparaged his alibi defense during jury selection is not preserved for our review (see, CPL 470.05[2];  People v. Butler, 214 A.D.2d 1014, 1015, 626 N.Y.S.2d 613, lv. denied 86 N.Y.2d 791, 632 N.Y.S.2d 504, 656 N.E.2d 603, 89 N.Y.2d 920, 654 N.Y.S.2d 722, 677 N.E.2d 294).   In any event, it was the prosecutor, and not the court, who questioned the potential jurors regarding defendant's alibi defense.   Were we to address this issue, we would conclude that the prosecutor's questions were an attempt to discern any possible bias and did not deprive defendant of a fair trial (see, People v. Butler, supra, at 1015, 626 N.Y.S.2d 613;  see generally, People v. South, 233 A.D.2d 910, 649 N.Y.S.2d 553, lv. denied 89 N.Y.2d 989, 656 N.Y.S.2d 747, 678 N.E.2d 1363).   We reject defendant's contention that counsel was ineffective.   Counsel's failure to make pretrial motions generally does not by itself establish ineffective assistance of counsel (see, People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).   Defendant has failed to show that the motions, if made, would have been successful and that counsel otherwise failed to provide meaningful representation (see, People v. Leeper, 254 A.D.2d 754, 678 N.Y.S.2d 554;  People v. Claitt, 222 A.D.2d 1038, 636 N.Y.S.2d 247, lv. denied 88 N.Y.2d 982, 649 N.Y.S.2d 388, 672 N.E.2d 614).   In addition, defendant has failed to show the absence of a tactical or other legitimate explanation for the remaining alleged errors of counsel (see, People v. Garcia, 75 N.Y.2d 973, 974, 556 N.Y.S.2d 505, 555 N.E.2d 902;  People v. Montana, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).   Viewing the evidence, the law and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see, People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Finally, the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: