
    The People of the State of New York, Respondent, v Stanley Howard, Appellant.
    [788 NYS2d 909]
   Appeal from a judgment of the Cayuga County Court (Peter E. Corning, J.), rendered August 14, 2002. The judgment convicted defendant, following a nonjury trial, of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him following a nonjury trial of two counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and two counts of criminal possession of a controlled substance in the third degree (§ 220.16 [1]), defendant contends that he was denied effective assistance of counsel based on counsel’s failure to call witnesses or present evidence corroborating the testimony of defendant that he was either in New York City or en route to New York City at the time the crimes were committed. We disagree. Where, as here, the reason certain witnesses were not called or certain evidence was not presented is not apparent from the record, we must “presume it was based upon sound trial strategy and did not deprive defendant of a fair trial” (People v Smith [William], 115 AD2d 304, 304 [1985]; see People v Streeter, 236 AD2d 857 [1997], lv denied 90 NY2d 864 [1997]). Indeed, inasmuch as defendant’s contention is based on material dehors the record, that contention is not properly raised on direct appeal (see People v Zimmerman, 309 AD2d 824, 824-825 [2003], lv denied 1 NY3d 603 [2004]; People v Car-lisle, 272 AD2d 477 [2000], lv denied 95 NY2d 904 [2000]). We conclude that the verdict is not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]), and the sentence is not unduly harsh or severe.

We have reviewed the contentions raised in the pro se supplemental brief and conclude that they are without merit. Present — Pigott, Jr., PJ., Green, Pine, Gorski and Lawton, JJ.  