On the existing record, which defendant has not sought to expand by way of a CPL 440.10 motion whereby trial counsel could explain his strategy ( see People v. Love, 57 N.Y.2d 998), we conclude that defendant has failed to demonstrate "the absence of strategic or other legitimate explanations" for counsel's conduct of the trial ( People v. Rivera, 71 N.Y.2d 705, 709). Given the overwhelming evidence of defendant's guilt, and bearing in mind that "[c]ounsel may not be expected to create a defense where it does not exist" ( People v. DeFreitas, 213 A.D.2d 96, 101), we find that defendant received effective assistance ( see People v. Benevento, 91 N.Y.2d 708, 713-714; see also Strickland v. Washington, 466 U.S. 668). Counsel's strategy of concentrating his attack upon those charges that were supported by the least evidence, while at no point expressly conceding defendant's guilt of the other charges, was reasonable under the circumstances ( see People v. Hogencamp, 295 A.D.2d 643, lv denied 98 N.Y.2d 697; People v. Chaney, 284 A.D.2d 998, lv denied 98 N.Y.2d 697), and this strategy did not impair the fairness of the trial or affect its result.
Counsel's strategy was not the functional equivalent of a guilty plea or a total abandonment of defendant's right of confrontation ( compare United States v. Plitman, 194 F.3d 59, 62-64, with Brookhart v. Janis, 384 U.S. 1). Furthermore, there was no failure by counsel to subject the prosecution's case to meaningful adversarial testing ( see Bell v. Cone, 535 U.S. 685, 696-698).
To the extent that defendant is challenging a ruling made by the court concerning voir dire of prospective jurors, that claim is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the ruling was a proper exercise of discretion.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.