SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
427
KA 10-00213
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JEFFREY R. DOMBROWSKI, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR RESPONDENT.
Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Erie County Court (Michael F. Pietruszka, J.), entered December 3,
2009. The appeal was held by this Court by order entered September
30, 2011, decision was reserved and the matter was remitted to Erie
County Court for further proceedings (87 AD3d 1267). The proceedings
were held and completed.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed.
Memorandum: Defendant was convicted following a nonjury trial
of, inter alia, burglary in the second degree (Penal Law § 140.25
[2]), and that judgment of conviction was affirmed on appeal (People v
Dombrowski, 55 AD3d 1358, lv denied 11 NY3d 924). Defendant
thereafter moved pursuant to CPL 440.10 and 440.20 to vacate the
judgment and to set aside the sentence. After that motion was
summarily denied, we granted his CPL 460.15 application for a
certificate granting leave to appeal. We note at the outset that, on
appeal, defendant failed to raise any contention concerning that part
of his motion seeking to set aside the sentence, and we thus deemed
any issues with respect thereto abandoned (Dombrowski, 87 AD3d 1267,
1267). We concluded, however, that defendant was entitled to a
hearing on the issue whether defense counsel had a tactical reason for
failing to call exculpatory witnesses, two of whom were present in the
courthouse during defendant’s trial, and we remitted the matter to
County Court for a hearing on that issue (id. at 1268).
At the hearing upon remittal, trial counsel discussed his reason
for not calling those witnesses and, while in hindsight that decision
may not have been the best strategy, it is well settled that
disagreement over trial strategy is not a basis for a determination of
-2- 427
KA 10-00213
ineffective assistance of counsel (see generally People v Benevento,
91 NY2d 708, 712-713; People v Baldi, 54 NY2d 137, 146). We therefore
conclude that, upon remittal, defendant failed to meet his burden of
demonstrating the absence of a legitimate or strategic basis for trial
counsel’s decision not to call those witnesses and has thus failed to
establish that he was denied effective assistance of counsel (see e.g.
People v Collins, 85 AD3d 1678, 1679; People v Gonzalez, 62 AD3d 1263,
1265, lv denied 12 NY3d 925; People v Roman, 60 AD3d 1416, 1417-1418,
lv denied 12 NY3d 928).
As defendant correctly contends, however, the certificate of
conviction mistakenly recites that he was sentenced as a second
violent felony offender. The sentencing minutes establish that
defendant was sentenced as a “second felony offender,” and the
certificate of conviction must therefore be amended to correct the
clerical error (see generally People v Saxton, 32 AD3d 1286, 1286-
1287).
Entered: April 20, 2012 Frances E. Cafarell
Clerk of the Court