Opinion
November 3, 1994
Appeal from the County Court of Sullivan County (Kane, J.).
This is the last of a triune of appeals by three defendants emanating from the shooting of Dwight Usher outside a bar in Sullivan County in September 1989. All three were indicted and jointly tried on charges of attempted murder in the second degree, assault in the first degree, two counts of criminal use of a firearm in the first degree, and criminal possession of a weapon in the second degree. They were convicted on all charges except assault in the first degree. In People v. Pittman ( 189 A.D.2d 918, lv denied 81 N.Y.2d 891) and People v. Middleton ( 192 A.D.2d 740, lv denied 83 N.Y.2d 913), this Court affirmed the convictions of the codefendants. Here, defendant contends that County Court erred in precluding one of his witnesses from testifying that he was not a participant in the shooting because he was inside the bar at the time, that he was denied effective assistance of counsel and that prosecutorial misconduct denied him a fair trial.
As to the preclusion of his witness from testifying, defendant does not deny that he failed to serve the requisite CPL 250.20 notice of alibi, but he contends that the proffered evidence was not alibi evidence as it did not seek to place him at a location other than the scene of the crime. Even if we were to find that County Court committed error when it precluded this testimony, we conclude that such error would be harmless in view of the overwhelming evidence of guilt (see, People v. Peralta, 127 A.D.2d 803, lv denied 69 N.Y.2d 953; People v. Ruiz, 159 A.D.2d 656, lv denied 76 N.Y.2d 742; People v Bonomo, 47 A.D.2d 862).
We find equally unpersuasive defendant's contention that he was deprived of effective assistance of counsel. Defendant's arguments that center on counsel's allegedly ineffective performance are not substantiated in the record and do not equate to ineffective assistance as we have already held in both People v. Pittman (supra) and People v. Middleton (supra). The wisdom of hindsight is always advantageous (see, People v. Aiken, 45 N.Y.2d 394, 399), but simple disagreement with trial strategies and tactics does not prove ineffectiveness (see, People v. Wright, 206 A.D.2d 750). When viewed in totality, as we must do, counsel's representation satisfied the well-established criteria set forth in People v. Baldi ( 54 N.Y.2d 137; see, also, People v. Hope, 190 A.D.2d 958, 959, lv denied 81 N.Y.2d 972).
Finally, we reject the allegation that prosecutorial misconduct during trial and summation were so pervasive and egregious as to deprive defendant of a fair trial (see, People v. Gonzalez, 206 A.D.2d 946; People v. Gutkaiss, 206 A.D.2d 628).
Mikoll, J.P., Mercure and Yesawich Jr., JJ., concur. Ordered that the judgment is affirmed.