PEOPLE v. REYES (2001)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers, J.), rendered April 29, 1999, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that he was deprived of the effective assistance of counsel is without merit.   The evidence at trial disclosed that the defendant sold one glassine of heroin to an undercover police officer.   The defendant, who was arrested by the backup team minutes after the sale, was found in possession of 48 bags of cocaine.   Under the circumstances of the case, it was reasonable for the defense counsel to concede possession of the cocaine and focus instead on the sale of heroin (see, People v. Lemma, 273 A.D.2d 180, 711 N.Y.S.2d 3;  see also, People v. Rodriguez, 219 A.D.2d 545, 631 N.Y.S.2d 348).   Defense counsel's trial strategy, which was to pursue a mistaken identity defense, consistently argued that the defendant was not the seller.   Such a defense was a reasonable and plausible defense strategy in view of the evidence in the case (see, People v. Williams, 245 A.D.2d 400, 666 N.Y.S.2d 452;  People v. Aguilar, 224 A.D.2d 704, 639 N.Y.S.2d 75).   The fact that this strategy was unsuccessful does not render the defense counsel's performance incompetent or indicate that the defendant was denied meaningful representation (see, People v. Benevento, 91 N.Y.2d 708, 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;  People v. Aguilar, supra).   Defense counsel made the proper pretrial motion, vigorously pursued a mistaken identity defense, cross-examined the People's witnesses, and called witnesses on the defendant's behalf consistent with the defense strategy.   Viewing the evidence, the law, and the circumstances together as of the time of representation, we find that the defendant's right to the effective assistance of counsel was satisfied (see, People v. Benevento, supra;  People v. Baldi, supra;  People v. Aguilar, supra).