SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
221
KA 09-01583
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GREEN, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ORLANDO O. OCASIO, DEFENDANT-APPELLANT.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (John J.
Connell, J.), rendered July 24, 2009. The judgment convicted
defendant, upon a nonjury verdict, of criminal sexual act in the first
degree (three counts) and sexual abuse in the first degree (three
counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
following a bench trial of three counts each of criminal sexual act in
the first degree (Penal Law § 130.50 [3]) and sexual abuse in the
first degree (§ 130.65 [3]). We reject the contention of defendant
that he was denied effective assistance of counsel based upon defense
counsel’s alleged failure to conduct an effective cross-examination of
the People’s expert witnesses. That contention constitutes “a
disagreement with the strategies and tactics of [defense] counsel
[that], in hindsight, may have been unsuccessful but, nonetheless, do
not rise to a level of ineffective assistance of counsel” (People v
Page, 225 AD2d 831, 834, lv denied 88 NY2d 883; see People v Barber,
231 AD2d 835). To the extent that defendant’s contention concerning
ineffective assistance of counsel is based upon defense counsel’s
alleged failure to consult experts or to conduct an investigation with
respect to the medical and psychological evidence presented through
the People’s expert witnesses, it involves matters outside the record
on appeal (see People v Cobb, 72 AD3d 1565, 1567, lv denied 15 NY3d
803; People v Washington, 39 AD3d 1228, 1230, lv denied 9 NY3d 870).
Thus, that contention must be raised by way of a motion pursuant to
CPL article 440 (see Cobb, 72 AD3d at 1567; see generally People v
Okongwu, 71 AD3d 1393), or an application seeking other post-
conviction relief (see generally Jackson v Conway, ___ F Supp 2d ___
[2011]).
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KA 09-01583
Defendant further contends that his right to effective assistance
of counsel was violated when County Court failed to make an
appropriate inquiry into his complaints concerning his representation
and in response to his request for substitution of counsel. Defendant
requested substitution of counsel in a letter received by the court
approximately five months before trial, and defendant thereafter
expressed no further dissatisfaction with defense counsel or renewed
his request. Thus, under the circumstances of this case, we conclude
that defendant abandoned his request for substitution of counsel (see
People v Hobart, 286 AD2d 916, lv denied 97 NY2d 683). In any event,
“ ‘[t]he failure to make a minimal inquiry [into the defendant’s
reasons for requesting substitution of counsel] does not mandate
reversal when a defendant’s request is based on . . . assertions that
do not suggest a serious possibility of good cause for substitution’ ”
(People v Moore, 41 AD3d 1149, 1150, lv denied 9 NY3d 879, 992).
Finally, viewing the evidence in light of the elements of the
crimes in this bench trial (see People v Danielson, 9 NY3d 342, 349),
we conclude that the verdict is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495).
Entered: February 18, 2011 Patricia L. Morgan
Clerk of the Court