PEOPLE v. ALBERTO (1998)

Judgment, Supreme Court, Bronx County (Denis Boyle, J.), rendered November 30, 1995, convicting defendant, after a jury trial, of two counts of robbery in the first degree, two counts of burglary in first degree and one count of robbery in the second degree, and sentencing him to four concurrent terms of 6 to 18 years and a concurrent term of 5 to 15 years, respectively, unanimously affirmed.

The verdict was not against the weight of the evidence.   We find no basis in the record to disturb the jury's determinations concerning credibility of witnesses and reliability of identification testimony.

 Defendant's argument that the court erred in admitting expert testimony concerning certain allegedly irrelevant fingerprint evidence is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the fingerprint evidence was relevant to issues presented at trial, and that any potential prejudice was eliminated by defendant's cross-examination of the expert witnesses.

 Defendant's ineffective assistance of counsel claim involves a matter of strategy and thus would require a motion pursuant to CPL 440.10.   On the existing record, we find that the fact that counsel did not request an adverse inference charge concerning the police's failure to voucher certain evidence could not have deprived defendant of a fair trial (see, People v. Hobot, 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102).   Counsel drew adverse attention to that failure by vigorous cross-examination of the People's witnesses (see, People v. Cruz, 165 A.D.2d 205, 208, 566 N.Y.S.2d 608, lv. denied 77 N.Y.2d 959, 570 N.Y.S.2d 493, 573 N.E.2d 581), and, in any event, defendant has not established that he would have been entitled to such an instruction.

MEMORANDUM DECISION.