State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 105988 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

KEITH R. POTTORFF,

Appellant.

________________________________

Calendar Date: October 11, 2016

Before: Peters, P.J., Lynch, Devine, Clark and Aarons, JJ.

__________

Patrick A. Perfetti, Cortland, for appellant.

Mark D. Suben, District Attorney, Cortland, for respondent.

__________

Devine, J.

Appeal from a judgment of the County Court of Cortland

County (Campbell, J.), rendered April 18, 2013, upon a verdict

convicting defendant of the crimes of murder in the second

degree, criminal possession of stolen property in the fourth

degree, criminal possession of stolen property in the fifth

degree, forgery in the second degree and criminal possession of a

forged instrument in the second degree.

Defendant and the victim were married and, on the afternoon

of July 17, 2012, he picked the victim up from work and took her

home. Defendant had recently resumed using crack cocaine, and he

acknowledged that the two had argued that afternoon about his

drug use and his stated goal of attending a music festival later

that week. He left the residence by 7:00 p.m. and, over the

course of the next few days, purchased various items and attended
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the music festival with money he obtained using the victim's

debit card and checks written against her checking account. 

The victim, meanwhile, was nowhere to be found. Defendant

called her employer and reported that she was sick on July 18 and

19, 2012, even though she was not scheduled to work on the latter

day. The victim's coworkers became suspicious and contacted the

State Police, who located defendant on July 20, 2012 at the music

festival and recovered pieces of the victim's jewelry, her debit

card and her checkbook from his campsite. Defendant consented to

a search of the marital residence, which occurred later that day

and resulted in the discovery of the victim's corpse, hogtied and

head enclosed by plastic bags, in a nearby shed. The autopsy

conducted the next day revealed that the victim had been

asphyxiated and, given the condition of the body, the examining

pathologist opined that she had died no later than July 18, 2012. 

Genetic material consistent with defendant's DNA was also found

underneath the victim's fingernails and on a rope used to bind

her.

As a result of the victim's death and subsequent misuse of

her assets, defendant was charged in an indictment with murder in

the second degree, criminal possession of stolen property in the

fourth degree, criminal possession of stolen property in the

fifth degree, forgery in the second degree and criminal

possession of a forged instrument in the second degree. 

Defendant was found guilty as charged following a jury trial. 

County Court sentenced defendant, a second felony offender, to an

aggregate prison term of 281⁄2 years to life, and he now appeals.

We affirm. As an initial matter, County Court properly

permitted the People to re-open their direct examination of a

witness. The People had completed that direct examination and

the court took a short recess. Upon returning, the People asked

the court if they could briefly resume their direct examination

in order to elicit a factual detail that the witness realized he

had forgotten during the break. Defense counsel did not object

to this request and, in any event, it was not an abuse of

discretion to allow it (see People v Whipple, 97 NY2d 1, 7-8

[2001]; People v Diehl, 128 AD3d 1409, 1410 [2015]). 
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Defendant devotes considerable attention to the claim that

he was deprived of his right to the effective assistance of

counsel but, "[s]o long as the evidence, the law, and the

circumstances of a particular case, viewed in totality and as of

the time of the representation, reveal that the attorney provided

meaningful representation, the constitutional requirement will

have been met" (People v Baldi, 54 NY2d 137, 147 [1981]; accord

People v King, 27 NY3d 147, 158 [2016]). The burden rests on

defendant to show that any alleged failure by defense counsel

lacked a "strategic or other legitimate explanation[]" at the

time it occurred, and speculation on that score will not suffice

(People v Nicholson, 26 NY3d 813, 831 [2016]; see People v Welch,

137 AD3d 1313, 1314 [2016], lv denied 27 NY3d 1141 [2016]). 

Defendant first complains that defense counsel failed to

object when a portion of voir dire was not transcribed, but only

speculates as to how this failure may have led to "any

prejudicial impact on the trial" (People v Chappelle, 126 AD3d

1127, 1129 [2015], lv denied 25 NY3d 1161 [2015]; see People v

Vaughn, 135 AD3d 1158, 1159-1160 [2016], lv denied 27 NY2d 1076

[2016]). Likewise, defendant was not prejudiced by defense

counsel's failure to object to the use of purportedly confusing

warnings given by County Court that mirrored the criminal jury

instruction on the use of evidence of prior bad acts (see People

v Ellis, 81 NY2d 854, 857 [1993]; CJI2d[NY] Evidence of Other

Crimes [Molineux]).1 Defendant further failed to demonstrate

that a legitimate explanation was absent for other alleged

errors, such as defense counsel's decision not to retain an

expert witness to challenge the DNA test results presented by the

People (see People v Ross, 118 AD3d 1413, 1416 [2014], lvs

denied 24 NY3d 960, 964 [2014]) and failure to object to the

People's alleged penchant for asking leading questions and

eliciting hearsay evidence from witnesses (see People v Madison,

106 AD3d 1490, 1491-1492 [2013]; People v Leary, 145 AD2d 732,

1 Contrary to defendant's contention, County Court did not

issue these warnings sua sponte. The record demonstrates that

County Court had provided both the People and defense counsel

with the proposed instruction and that defense counsel consented

to its use.
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734-735 [1988], lv denied 73 NY2d 1017 [1989]). There was also

no apparent reason to conduct a probing cross-examination of

several prosecution witnesses, and the attempt by defendant to

second-guess defense counsel's decision not to do so is

unpersuasive (see People v Flores, 84 NY2d 184, 187 [1994];

People v Cancer, 16 AD3d 835, 840 [2005], lv denied 5 NY3d 826

[2005]). Defendant advances other instances in which he

supposedly received ineffective assistance of counsel but, in

short, the record as a whole establishes that he received

meaningful representation.

Defendant lastly argues that the aggregate sentence was

improper, harsh and excessive. County Court was free to make the

sentences for defendant's forgery in the second degree and

criminal possession of a forged instrument in the second degree

convictions run consecutively to those imposed on his other

convictions as, "[e]ven though the crimes may be the result of a

continuous course of events, they involved separate and distinct

acts" (People v Jenkins, 256 AD2d 735, 737 [1998], lv denied 93

NY2d 854 [1999]; see People v Salcedo, 92 NY2d 1019, 1021-1022

[1998]; People v Morrison, 290 AD2d 808, 809-810 [2002], lv

denied 98 NY2d 653 [2002]). Moreover, after considering the

nature of the present offenses and defendant's criminal history,

we see neither an abuse of discretion in the lengthy aggregate

prison sentence imposed by County Court nor any extraordinary

circumstances that would warrant its reduction.

Peters, P.J., Lynch, Clark and Aarons, JJ., concur.
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ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court