PEOPLE v. LEWIS (2004)

 On appeal from a judgment convicting him following a jury trial of criminal possession of stolen property in the fourth degree (Penal Law § 164.45 [5] ) and unauthorized use of a vehicle in the second degree (§ 165.06), defendant contends that he was denied effective assistance of counsel.   We reject that contention.   Although defense counsel made certain concessions at trial, we conclude that those concessions were “based upon a valid trial strategy” and thus cannot form the basis for a determination that defense counsel was ineffective (People v. Flemming, 191 A.D.2d 987, 988, 594 N.Y.S.2d 940, lv. denied 82 N.Y.2d 717, 602 N.Y.S.2d 814, 622 N.E.2d 315;  see e.g. People v. Flores, 194 A.D.2d 439, 599 N.Y.S.2d 255, affd. 84 N.Y.2d 184, 615 N.Y.S.2d 662, 639 N.E.2d 19;  People v. Garrick, 11 A.D.3d 395, 783 N.Y.S.2d 371;  People v. Plaisted, 2 A.D.3d 906, 909-910, 767 N.Y.S.2d 518, lv. denied 2 N.Y.3d 744, 778 N.Y.S.2d 470, 810 N.E.2d 923;  see generally People v. Benevento, 91 N.Y.2d 708, 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   We further conclude that “[d]efense counsel's conduct in eliciting testimony from a prosecution witness concerning defendant's prior uncharged bad acts can be explained as legitimate trial strategy consistent with the defense theor[y] that the ․ prosecution witness was biased against defendant” (People v. Pierce, 303 A.D.2d 966, 966, 758 N.Y.S.2d 444, lv. denied 100 N.Y.2d 565, 763 N.Y.S.2d 822, 795 N.E.2d 48;  see also People v. O'Malley, 282 A.D.2d 884, 885, 723 N.Y.S.2d 270, lv. denied 96 N.Y.2d 866, 730 N.Y.S.2d 40, 754 N.E.2d 1123).   Additionally, defense counsel's failure to request a sentence of parole supervision under CPL 410.91 does not constitute ineffective assistance of counsel inasmuch as defendant could have been sentenced as a persistent felony offender.   Further, the record does not support defendant's contention that defense counsel was ineffective in failing to argue that defendant's criminal conduct is attributable to substance dependence.

Finally, we conclude that the sentence is not unduly harsh or severe.

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

MEMORANDUM: