Calendar Date: March 26, 2018Before: McCarthy, J.P., Devine, Mulvey, Aarons and Pritzker, JJ.__________Goldberger & Dubin, PC, New York City (Stacey A. Van Maldenof counsel), for appellant.Kelli P. McCoski, District Attorney, Fonda (Lorraine C.Diamond of counsel), for respondent.__________Devine, J.Appeal from a judgment of the County Court of MontgomeryCounty (Sira, J.), rendered November 21, 2016, upon a verdictconvicting defendant of the crime of assault in the second degree(two counts).Defendant was admitted to a hospital’s mental healthinpatient unit in April 2016 and, while there, attacked andinjured two employees in an apparent attempt to flee. He wascharged in an indictment with offenses related to that incidentand, at trial, advanced “the affirmative defense of lack ofcriminal responsibility by reason of mental disease or defect”(CPL 250.10 [1] [a]; see Penal Law § 40.15). The jury rejectedthat defense and found him guilty of two counts of assault in thesecond degree. County Court then sentenced defendant toconcurrent prison terms of five years to be followed bypostrelease supervision of two years. Defendant appeals, and weaffirm.Defendant contends that trial counsel rendered ineffectiveassistance, an argument that will fail if “the evidence, the law,and the circumstances of [the] case, viewed in totality and as ofthe time of the representation, reveal that the attorney providedmeaningful representation” (People v Baldi, 54 NY2d 137, 147[1981]; accord People v Oliveras, 21 NY3d 339, 346 [2013]). Itis further incumbent upon defendant to show that counsel’sperformance was deficient and “that any alleged failure bydefense counsel lacked a ‘strategic or other legitimateexplanation[]‘ at the time it occurred” (People v Pottorff, 145AD3d 1095, 1097 [2016], lv denied 30 NY3d 1063 [2017], quotingPeople v Nicholson, 26 NY3d 813, 831 [2016]; see People vRosario, 157 AD3d 988, 993 [2018]).Defense counsel had the daunting task of defending a casewhere defendant’s actions on the night of the incident werebeyond dispute. Defense counsel played this weak hand by givinglate notice of, and successfully arguing for leave to present,the defense of mental disease or defect via the testimony of aclinical psychologist (see CPL 250.10 [2]). The delay inasserting that defense was explained to County Court’ssatisfaction, and defendant gives no reason to believe thatdefense counsel’s explanation was incorrect. Nothing in defensecounsel’s examination of the psychologist — in which counselelicited the psychologist’s knowledge of certain inconvenientfacts in a seeming effort to show that the psychologist hadconsidered them in forming an opinion as to defendant’s mentalstate — reflected a lack of preparation as opposed to validstrategy (cf. People v Wilson, 133 AD2d 179, 181-182 [1987]).1Contrary to defendant’s contention, defense counsel elicited aclear opinion from the psychologist that defendant was psychoticat the time of the incident and that his worsening “delusion andhallucinations” led to the attacks. Defendant further complainsthat he damaged his defense by exercising his right to testify,but “[t]here is nothing in the record to suggest that [his]decision to testify was anything other than voluntary, and thefact that he may now regret that decision does not establish thathe was denied meaningful representation” (People v Varmette, 70AD3d 1167, 1172 [2010], lv denied 14 NY3d 845 [2010]). Defendantpoints to other purported deficiencies as well, but the record asa whole reveals that defense counsel handled a challenging casewith aplomb and afforded defendant with meaningfulrepresentation.Turning to sentencing, defendant did not raise any issuewith regard to the aggregate sentence despite having beenafforded an opportunity to do so by County Court. He accordinglyfailed to preserve his contention that the aggregate sentencereflected retaliation for his decision to reject prior pleaoffers and demand the trial to which he was entitled (see Peoplev Hurley, 75 NY2d 887, 888 [1990]; People v Hahn, 159 AD3d 1062,1067 [2018]). “In any event, the fact that defendant’s sentencewas greater than that offered during plea negotiations” does notdemonstrate that he was penalized for proceeding to trial (Peoplev Hahn, 159 AD3d at 1067; see People v Martinez, 144 AD3d 1326,1326 [2016], lv denied 28 NY3d 1186 [2017]). County Court statedwhat factors motivated it to impose a greater sentence than theones contemplated by prior plea offers, pointing to the jury’srejection of defendant’s mental disease or defect defense, hisfailure to accept responsibility for his acts during thepresentence investigation and the degree to which his actswrought physical injuries and emotional impacts upon the victims.There was nothing retaliatory in this and, after consideringthose factors ourselves, we cannot say that “extraordinarycircumstances exist that render the sentence[] imposed harsh andexcessive” (People v Best, 158 AD3d 989, 990 [2018]; see People vGray, 47 AD3d 1068, 1068 [2008], lv denied 10 NY3d 863 [2008]).1048, 1052 [2015]).McCarthy, J.P., Mulvey, Aarons and Pritzker, JJ., concur.ORDERED that the judgment is affirmed.ENTER:Robert D. MaybergerClerk of the Court
