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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Kenneth M. PRUE, Appellant.

Decided: February 23, 2006

Before:  MERCURE, J.P., CREW III, PETERS, MUGGLIN and KANE, JJ. Alexander Lesyk, Chateaugay, for appellant. Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), for respondent.

Appeal, by permission, from an order of the County Court of Franklin County (Lawliss, J.), entered October 1, 2004, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of vehicular manslaughter in the second degree and driving while intoxicated (two counts) and the traffic infraction of failure to keep right, without a hearing.

On his direct appeal, one of defendant's arguments was that the evidence was not legally sufficient to establish his guilt of vehicular manslaughter in the second degree.   For the reasons expressed in our previous decision, we disagreed (8 A.D.3d 894, 896, 779 N.Y.S.2d 271 [2004], lv. denied 3 N.Y.3d 680, 784 N.Y.S.2d 18, 817 N.E.2d 836 [2004] ).   During the pendency of the direct appeal, defendant, pro se, moved pursuant to CPL 440.10 to vacate the judgment of conviction based on ineffective assistance of counsel.   County Court, without holding a hearing, denied his motion and defendant appeals by permission of this Court.

 A single error of otherwise competent trial counsel does not generally deprive a defendant of his or her constitutional right to the effective assistance of counsel (see People v. Turner, 5 N.Y.3d 476, 480-481, 806 N.Y.S.2d 154, 840 N.E.2d 123 [2005] ).   Only where the single failing is of such prejudicial magnitude that there exists a reasonable likelihood of a different outcome is defendant deprived of his or her constitutional rights (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005];  People v. Douglas, 296 A.D.2d 656, 657, 746 N.Y.S.2d 72 [2002], lv. denied 99 N.Y.2d 535, 752 N.Y.S.2d 595, 782 N.E.2d 573 [2002] ).   Here, defendant's single assertion of error is that trial counsel failed to use a letter in his possession from the People's pathologist, in which the latter, among other things, stated that he was “unable to determine if the head injuries were caused by the accident or shortly before the accident” to impeach the pathologist's trial testimony that the victim sustained a concussion in the accident.   However, through cross-examination of the pathologist, defense counsel got him to acknowledge that the victim's concussion could have occurred from any number of events involving the victim prior to the accident.   As the witness had already admitted what the letter would reveal, failure to use the letter does not constitute overwhelmingly prejudicial error (see People v. Nickel, 14 A.D.3d 869, 872, 788 N.Y.S.2d 274 [2005], lv. denied 4 N.Y.3d 834, 796 N.Y.S.2d 589, 829 N.E.2d 682 [2005] ).   Moreover, as limited by the record before us, we conclude that counsel's performance met the objective standard of reasonable and meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).   Accordingly, we conclude that County Court properly denied defendant's motion without a hearing (see CPL 440.30[4][a] ).

ORDERED that the order is affirmed.



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