MONTERO, CARMEN G., PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1220
KA 09-00667
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
CARMEN G. MONTERO, DEFENDANT-APPELLANT.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County (Francis
A. Affronti, J.), rendered May 27, 2008. The judgment convicted
defendant, upon a jury verdict, of rape in the second degree (two
counts), promoting prostitution in the second degree (two counts) and
endangering the welfare of a child.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her, upon
a jury verdict, of two counts each of rape in the second degree (Penal
Law § 130.30 [1]) and promoting prostitution in the second degree (§
230.30 [2]), and one count of endangering the welfare of a child (§
260.10 [1]). Defendant failed to preserve for our review her contention
that she was deprived of a fair trial by prosecutorial misconduct (see
CPL 470.05 [2]; People v Beggs, 19 AD3d 1150, 1151, lv denied 5 NY3d
803), and we decline to exercise our power to review that contention as
a matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]).
Contrary to defendant’s further contention, we conclude that she
was not deprived of her right to effective assistance of counsel. It is
well settled that a defendant receives effective assistance of counsel
“[s]o long as the evidence, the law, and the circumstances of a
particular case, viewed in totality and as of the time of the
representation, reveal that the attorney provided meaningful
representation” (People v Baldi, 54 NY2d 137, 147). “Isolated errors in
counsel’s representation generally will not rise to the level of
ineffectiveness, unless the error is so serious that defendant did not
receive a fair trial” (People v Henry, 95 NY2d 563, 565-566 [internal
quotation marks omitted]; see People v Flores, 84 NY2d 184, 188-189).
Moreover, “[t]o prevail on a claim of ineffective assistance of counsel,
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KA 09-00667
it is incumbent on defendant to demonstrate the absence of strategic or
other legitimate explanations” for defense counsel’s alleged
shortcomings (People v Rivera, 71 NY2d 705, 709; see People v Taylor, 1
NY3d 174, 177). Here, although defendant contends that there were
errors in defense counsel’s performance, she failed to demonstrate that
defense counsel lacked strategic or other legitimate reasons for the
challenged actions (see Baldi, 54 NY2d at 151). Additionally, defendant
has failed to demonstrate that those isolated errors were so serious
that she did not receive a fair trial (see Henry, 95 NY2d at 565-566).
Defendant also contends that Supreme Court erred in failing to
instruct the jury that the trial testimony of her alleged accomplice
must be corroborated by independent evidence (see CPL 60.22 [1]).
Defendant’s contention is not preserved for our review because she did
not object to the court’s charge, nor did she request that an accomplice
charge be given (see CPL 470.05 [2]; People v Weeks, 15 AD3d 845, 846,
lv denied 4 NY3d 892). “In any event, the failure of the court to give
that instruction is of no moment, inasmuch as the testimony of the
[accomplice] was in fact amply corroborated” (People v Peoples, 66 AD3d
1419, 1419, lv denied 14 NY3d 843).
Entered: November 16, 2012 Frances E. Cafarell
Clerk of the Court