Opinion
December 14, 1984
Appeal from the Steuben County Court, Purple, J.
Present — Callahan, J.P., Doerr, Boomer, Green and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: The prosecutor erred in asking defendant whether he was convicted of criminal possession of a controlled substance in 1975 because he knew or should have known from the notations on the certificate of conviction and on defendant's criminal history attached to the People's "Response To Demand To Produce" that the charge was adjourned in contemplation of dismissal and, therefore, dismissed by operation of law (see People v. Cook, 37 N.Y.2d 591; People v. Santiago, 15 N.Y.2d 640; cf. People v. Schwartzman, 24 N.Y.2d 241, cert den 396 U.S. 846). We deem the error harmless, however, in view of the trial court's curative charge and the overwhelming evidence of defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 238-243). The defendant's claim of ineffective assistance of counsel is based primarily on the failure to make a Sandoval motion. This in itself, however, is not a basis for reversal (see People v. De Mauro, 48 N.Y.2d 892, 893-894; People v. Bernas, 99 A.D.2d 612; People v. Shannon, 92 A.D.2d 554, 556). Where, as here, such failure is consistent with a reasonable trial strategy, there is no basis to conclude that defendant was deprived of meaningful representation under either the State test (see People v. Baldi, 54 N.Y.2d 137) or the Federal standard (see Strickland v Washington, 466 US ___, 104 S Ct 2052). Defendant's claim concerning the trial court's receipt of the People's rebuttal testimony was not preserved for review (CPL 470.05, subd 2). We have considered the other contentions raised by defendant and find them lacking in merit.