THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. VENICE NESMITH DEFENDANT APPELLANT (2016)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him following a jury trial of burglary in the second degree (Penal Law § 140.25[2] ), defendant contends that County Court (Crimi, A.J.) abused its discretion in issuing a protective order that allowed the People to withhold from the defense until the time of trial the identity of an eyewitness to the crime, who was referred to in the People's CPL 710.30 notice as “Witness A.” We agree.  CPL 240.50(1) provides that a protective order may be issued upon a showing of “good cause,” which includes “a substantial risk of physical harm [or] intimidation.”  Here, the People's moving papers merely asserted in conclusory fashion that there was a substantial risk that Witness A would be harmed and/or intimidated if his or her identity were disclosed, and they offered no evidence in support of that claim (cf.  People v. Mileto, 290 A.D.2d 877, 879, lv denied 97 N.Y.2d 758;  People v. Robinson, 200 A.D.2d 693, 694, lv denied 84 N.Y.2d 831).  We further conclude, however, that defendant was not prejudiced by the protective order inasmuch as a notice pursuant to CPL 710.30 need not name an identifying witness (see People v. Poles, 70 AD3d 1402, 1403, lv denied 15 NY3d 808;  see generally People v. Lopez, 84 N.Y.2d 425, 428;  People v. Ocasio, 183 A.D.2d 921, 922–923, lv dismissed 80 N.Y.2d 932), and “[t]here is neither a constitutional nor statutory obligation mandating the pretrial disclosure of the identity of a prosecution witness” (People v. Miller, 106 A.D.2d 787, 788;  see generally People v. Lynch, 23 N.Y.2d 262, 272;  People v. Stacchini, 108 AD3d 866, 867).  Thus, we conclude that the court's error is harmless inasmuch as the People did not need a protective order to withhold the witness's identity until trial (see generally CPL 470.05[1] ).

Defendant further contends that he was deprived of effective assistance of counsel based on errors in his attorney's presentation of an alibi defense at trial.  We reject that contention.  Although defendant testified at trial and undermined his alibi defense during direct examination by defense counsel, nothing in the record indicates that defense counsel could have anticipated that defendant would offer the harmful testimony (see People v. Covington, 44 AD3d 510, 511, lv denied 9 NY3d 1032;  see generally People v. Henry, 95 N.Y.2d 563, 566;  People v. Crosdale, 103 AD3d 749, 750, lv denied 21 NY3d 1003).  Morever, even though defendant's other alibi witness was impeached by a prior statement that she made to a defense investigator, “counsel cannot be held ineffective because the People impeached the alibi witness [ ]” (People v. Wragg, 26 NY3d 403, 412;  see People v. Collins, 203 A.D.2d 888, 889, lv denied 84 N.Y.2d 934, reconsideration denied 85 N.Y.2d 861;  see generally People v. Smith, 82 N.Y.2d 731, 733).  Defendant's remaining complaints of ineffectiveness reflect mere disagreements with defense counsel's trial strategy, which do not amount to ineffective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 713).

Finally, we reject defendant's contention that the prosecutor improperly shifted the burden of proof on summation.  We note in any event that County Court (Castro, A.J.) repeatedly instructed the jury that the burden of proof on all issues remained with the prosecution (see People v. Matthews, 27 AD3d 1115, 1116).

Frances E. Cafarell

Clerk of the Court