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