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People v. Loret

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 21, 2008
56 A.D.3d 1283 (N.Y. App. Div. 2008)

Opinion

No. KA 05-02072.

November 21, 2008.

Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.), entered July 20, 2005. The judgment convicted defendant, upon a nonjury verdict, of murder in the second degree.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT.

DAVID M. LORET, DEFENDANT-APPELLANT PRO SE.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD OF COUNSEL), FOR RESPONDENT.

Before: Scudder, P.J., Hurlbutt, Fahey, Peradotto and Pine, JJ.


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

Memorandum: Defendant appeals from a judgment convicting him following a nonjury trial of murder in the second degree (Penal Law § 125.25). We reject the contention of defendant in his main brief that he was denied effective assistance of counsel ( see generally People v Baldi, 54 NY2d 137, 147). Defendant failed to meet his burden of demonstrating "`the absence of strategic or other legitimate explanations' for [defense] counsel's alleged shortcomings", ( People v Benevento, 91 NY2d 708, 712). Indeed, defense counsel's coherent strategy at trial to cast doubt on the forensic procedures used by the prosecution's witnesses is apparent from the record ( see People v Hewlett, 71 NY2d 841, 842). We further conclude that defense counsel's failure to call a rebuttal expert witness did not constitute ineffective assistance of counsel absent a showing that the expert's testimony would have assisted the trier of fact or that defendant was prejudiced by the absence of such testimony ( see People v Brandi E., 38 AD3d 1218, 1219, lv denied 9 NY3d 863). Contrary to defendant's contention, defense counsel's comments at the sentencing hearing were neither adverse to defendant's position, nor amounted to defense counsel becoming a witness against defendant ( cf. People v Lawrence, 27 AD3d 1091). The remaining contentions of defendant in his main and pro se supplemental briefs are without merit.


Summaries of

People v. Loret

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 21, 2008
56 A.D.3d 1283 (N.Y. App. Div. 2008)
Case details for

People v. Loret

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAVID M. LORET…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 21, 2008

Citations

56 A.D.3d 1283 (N.Y. App. Div. 2008)
2008 N.Y. Slip Op. 9225
867 N.Y.S.2d 649

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