THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ALLEN E. ROTE, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
April 13, 2006
812 NYS2d 191
As a result of an undercover drug operation, defendant was accused of selling marihuana on three separate occasions. Although defendant never entered a formal plea to the indictment, a jury trial was held and he was found guilty of two counts of criminal sale of marihuana in the third degree and one count of criminal sale of marihuana in the fourth degree. Sentenced to concurrent prison terms of 1 to 3 years on the third degree sale convictions and one year in jail on the fourth degree sale conviction and restitution, defendant now appeals.
Defendant urges two grounds as a basis for reversal of his conviction. First, defendant contends that his failure to enter a plea deprived County Court of jurisdiction of his person. Since the issue raised does not impact the essential validity of the proceedings and, thus, is not of jurisdictional dimension (cf. People v Patterson, 39 NY2d 288, 294-296 [1976], affd 432 US 197 [1977]), the failure to raise the issue before County Court, in the absence of demonstrable prejudice, leaves it unpreserved for our review (see
Second, defendant claims that he received the ineffective assistance of counsel at trial in two instances. Initially, defendant contends that trial counsel’s failure to request that County Court charge the jury with the agency defense constitutes ineffectiveness. “An agency defense must be submitted to the jury if any reasonable view of the evidence, considered in the light most favorable to the defendant, supports the conclusion that the defendant, in selling narcotics, was acting ‘solely on behalf of the buyer such as to be a mere extension or instrumentality
Next, defendant urges that trial counsel was ineffective because he offered into evidence the scales that defendant allegedly used to weigh the marihuana sold to the undercover officer. It is well settled that objectively reasonable and legitimate trial strategies adopted by trial counsel, when viewed against the circumstances of the case and evidence presented, will not be considered ineffective assistance of counsel even if unsuccessful (see People v Rosado, 13 AD3d 902, 904 [2004], lv denied 4 NY3d 835 [2005]). Here, trial counsel offered defendant’s scales into evidence in an effort to discredit the testimony of the undercover officer that defendant weighed the drugs sold—the apparent theory being that the scales were inadequate for that purpose. The prosecution was apparently successful in discrediting counsel’s argument in this regard, but such losing tactic fails to rise to the level required for ineffective assistance of counsel (see People v Rodabaugh, supra at 600). Moreover, examination of the entire criminal proceeding convinces us that the totality of the representation equates to the required meaningful representation, all that defendant’s constitutional right requires (see People v Baldi, 54 NY2d 137, 147 [1981]).
Mercure, J.P., Peters, Carpinello and Lahtinen, JJ., concur.
Ordered that the judgment is affirmed.