Opinion
June 22, 1987
Appeal from the Supreme Court, Kings County, Demakos, J., Kramer, J.
Ordered that the judgment is affirmed.
Based upon the record before us, we cannot agree with the defendant's contention that he was deprived of the effective assistance of counsel. The failure of defense counsel to request a Wade hearing was not error where the defendant conceded at trial that he was at the scene of the crime and where his defense was based upon the issue of credibility between his version of the incident and the version of the People's sole eyewitness. Moreover, we note that the testimony clearly established that there was an ample source for the witness's in-court identification of the defendant, independent of his pretrial photographic identification (see, People v Boero, 117 A.D.2d 814, 815; People v Morris, 100 A.D.2d 630, affd 64 N.Y.2d 803). The failure of counsel to call an independent forensic expert was not error. Counsel conducted an extensive cross-examination of the People's expert and got her to concede that she was not certain of various facts to which she had testified. Thus, the failure to call an independent expert is nothing more than a trial tactic which should not be second-guessed (see, People v Baldi, 54 N.Y.2d 137). Finally, defense counsel should not have elicited on direct examination of his client that he had been convicted of an arson charge for which he received a youthful offender adjudication, since the court's previous Sandoval ruling had limited the inquiry solely to the underlying acts. However, the court gave a prompt curative instruction (see, People v Berg, 59 N.Y.2d 294). Moreover, the defendant has not demonstrated that his attorney's actions worked an actual and substantial disadvantage to his defense (see, Strickland v Washington, 466 U.S. 668; People v Morris, supra).
Nor can we agree with the defendant's argument that he was penalized for exercising his right to trial since his codefendants received lesser sentences after pleading guilty. There is no indication that vindictiveness based upon the defendant's failure to plead guilty played any part in his sentencing (see, People v Patterson, 106 A.D.2d 520, 521). The sentencing minutes indicate that the court looked to the appropriate factors in sentencing the defendant, and we conclude, therefore, that there was no abuse of discretion (see, People v Suitte, 90 A.D.2d 80).
The defendant's remaining contention is unpreserved for review, and in any event is without merit. Mangano, J.P., Niehoff, Spatt and Harwood, JJ., concur.