PEOPLE v. DAY (2008)

Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered July 24, 2003, convicting defendant, after a jury trial, of 10 counts of criminal possession of a weapon in the third degree, 2 counts of criminal possession of a weapon in the fourth degree, and 12 counts of criminal sale of a firearm in the third degree, and sentencing him to an aggregate term of 72 2/ 32 3 to 84 years, unanimously affirmed.

Defendant received effective assistance of counsel under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).  “Counsel may not be expected to create a defense when it does not exist” (People v. DeFreitas, 213 A.D.2d 96, 101, 630 N.Y.S.2d 755 [1995], lv. denied 86 N.Y.2d 872, 635 N.Y.S.2d 954, 659 N.E.2d 777 [1995] ).   The record reveals that defense counsel, in consultation with his client, carefully reviewed the available strategic options, which were very limited in the face of the overwhelming evidence of defendant's extensive trafficking in firearms.   There is no indication that a different strategy would have had any hope of success.

We perceive no basis for reducing the sentence, which, we note, is deemed by operation of law to be a sentence of 20 years (see Penal Law § 70.30[1][e] [ii] [A] ).

Defendant's pro se arguments are without merit.