People v. Philbert

• Decision Date: 09 December 1999
• Citation: 700 N.Y.S.2d 243,267 AD2d 607
• Parties: 1999 N.Y. Slip Op. 10,509 The PEOPLE of the State of New York, Respondent, v. Clarence PHILBERT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 243

700 N.Y.S.2d 243

1999 N.Y. Slip Op. 10,509

The PEOPLE of the State of New York, Respondent, v. Clarence PHILBERT, Appellant.

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

Dec. 9, 1999.

Sandra M. Colatosti, Albany, for appellant.

Sol Greenberg, District Attorney (John E. Maney of counsel), Albany, for respondent.

Before: CREW III, J.P., SPAIN, CARPINELLO, GRAFFEO and MUGGLIN, JJ.

GRAFFEO, J.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered September 11, 1998 in Albany County, upon a verdict convicting defendant of the crime of criminal possession of a controlled substance in the second degree.

Defendant was arrested after officers from the Albany County Sheriff's Narcotics Unit observed defendant discard a white plastic bag in a trash receptacle at a bus station in the City of Albany. The contents of the bag were subsequently found to contain an orange juice carton holding over two ounces of crack cocaine. Defendant's first trial ended in a hung jury, but at the conclusion of his second trial defendant was found guilty of criminal possession of a controlled substance in the second degree. He was sentenced as a second felony offender to an indeterminate sentence of imprisonment of 10 years to life.

Defendant appeals, initially contending that he was denied the effective assistance of counsel because the Public Defender assigned to his case failed to object during the trial to the admission of cocaine into evidence and did not cross-examine the prosecutor's forensic expert. We disagree. To establish ineffective assistance of counsel, a defendant must show that his or her attorney's trial tactics had no legitimate explanation (see, People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698) and that he or she received less than meaningful representation, which compromised the right to a fair trial (see, People v. Benevento, 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584). A difference of opinion with respect to strategies or trial tactics, particularly with the benefit of hindsight, is not sufficient to demonstrate ineffectiveness of counsel (see, id., at 713, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Rivera, supra, at 708-709, 530 N.Y.S.2d 52, 525 N.E.2d 698; People v. Aiken, 45 N.Y.2d 394, 399, 408 N.Y.S.2d 444, 380 N.E.2d 272).

Here, the record discloses that prior to trial defendant's counsel unsuccessfully attempted to suppress the evidence and, thereafter, he proffered a theory to the jury that the bag recovered by the police from the trash did not belong to defendant. Moreover, there is no indication that there were any procedural deficiencies with respect to the admission of the evidence. Based on the totality of the circumstances, we conclude that defendant's attorney, having actively participated in the trial and having a legitimate basis for his strategies, provided meaningful representation to defendant (see, People v. Murphy, 235 A.D.2d 933, 937-938, 654 N.Y.S.2d 187, lv. denied 90 N.Y.2d 896, 662 N.Y.S.2d 439, 685 N.E.2d 220).

Defendant's next argument, that the term of imprisonment imposed was harsh and excessive, is also unavailing. The sentence he received was within the statutory guidelines and he was sentenced as a second felony offender as this offense was his fourth drug-related felony conviction. In the absence of extraordinary circumstances or abuse of discretion by Supreme Court, we find no reason to disturb the sentence (see, People v. Wright, 214 A.D.2d 759, 762, 624 N.Y.S.2d 650, lv. denied 86 N.Y.2d 805, 632 N.Y.S.2d 519, 656 N.E.2d 618).

Defendant further asserts that he was deprived of his...