People v. DiStaola

Appeal by the defendant from two judgments of the Supreme Court, Westchester County (McMahon, J.), both rendered July 24, 1984, convicting him of murder in the second degree under indictment No. 83-00051-01, and murder in the second degree (two counts) under indictment No. 83-00927-01, upon jury verdicts, and imposing sentences. Ordered that the judgments are affirmed. Contrary to the defendant’s contentions, the record reveals that he was afforded the meaningful representation to which he was constitutionally entitled (see, People v Baldi, 54 NY2d 137). The alleged errors of counsel discernible upon review of the trial record merely involve attacks upon defense counsel’s trial strategy "which though unsuccessful, was well founded” (People v Leonard, 102 AD2d 857). It is well settled that "trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness” of counsel (People v Baldi, supra, at 146; see, People v Leonard, supra). In addition, the defendant’s contentions that his trial counsel failed to adequately prepare alibi witnesses, erred in failing to obtain expert testimony, and neglected to cross-examine a serologist with respect to a report not in evidence, are not supported by the trial record. These contentions cannot be reviewed in the absence of additional background facts that " 'might have been developed had an appropriate after-judgment motion been made’ pursuant to CPL 440.10” (People v Love, 57 NY2d 998, 1000, quoting from People v Jones, 55 NY2d 771, 773; see, People v Smith, 112 AD2d 389, lv denied 66 NY2d 767; People v Marchand, 104 AD2d 624; People v Leonard, supra). We have examined the defendant’s remaining contentions and find them to be either unpreserved for review (see, People v Nuccie, 57 NY2d 818) or without merit (see, People v Harris, 57 NY2d 335, 342, cert denied 460 US 1047; People v Pobliner, 32 NY2d 356, 369-370, rearg denied 33 NY2d 657, cert denied 416 US 905; People v Nowlin, 124 AD2d 833, 834, lv denied 69 NY2d 831). Bracken, J. P., Niehoff, Kooper and Sullivan, JJ., concur.