Opinion
April 26, 1990
Appeal from the County Court of Broome County (Monserrate, J.).
At trial, defendant admitted that he entered a convenience store gas station, displayed a handgun, demanded and obtained money from the store clerk and fled in a car driven by his accomplice, Christopher De Sivo, but claimed that he did these acts under duress (see, Penal Law § 40.00). In an effort to establish the defense of duress, defendant attempted to prove that he was afraid of De Sivo, that De Sivo had threatened him and his wife, had assaulted and attempted to kill defendant in the past, and had held defendant's wife hostage. Defendant sought to convince the jury that his fear of De Sivo was so profound that he believed De Sivo would kill him if he did not rob the gas station. Defendant's appeal calls into question the effectiveness of his counsel, the legal sufficiency of the People's proof and certain of County Court's rulings at trial.
The fact that defendant's trial counsel failed to subpoena De Sivo, did not call a witness who allegedly knew of defendant's fear of De Sivo, and unproductively examined one witness does not equate to ineffective representation. Absent any indication that either missing witness could or would have substantiated the duress defense, counsel is not to be faulted for failing to call them. Further, even a cursory examination of the trial transcript belies defendant's ineffectiveness claim; counsel competently cross-examined the prosecution witnesses and creditably tried to establish defendant's affirmative defense. Given that defendant was afforded meaningful representation, his criticism, directed as it is at his counsel's trial strategies and tactics, is of no avail (see, People v. Satterfield, 66 N.Y.2d 796, 799-800).
As for the contention that the only evidence presented indicated that the gun employed was unloaded, an affirmative defense to first degree robbery (see, Penal Law § 160.15), we note that the trial record suggests otherwise. One of defendant's accomplices and a witness for the People, Cathy Centro, testified that before the robbery she saw De Sivo place bullets in the gun. And, although defendant had earlier indicated that the gun was not loaded when De Sivo handed it to him, he corroborated Centro's description of how, after the robbery, De Sivo fired the pistol at nearby street lights.
Nor do we find County Court's challenged rulings to be erroneous. The court correctly limited evidence concerning De Sivo's postcrime-threatening conduct, for it was defendant's state of mind at the time he committed the robbery that was at issue. Threats and violence emanating from De Sivo after the incident would be irrelevant to the duress defense because they could not have affected defendant's mind set at the time of the robbery (see, People v. Tenace, 97 A.D.2d 592, 593). And, County Court properly permitted the People to use a prior inconsistent written statement possessed by defense counsel to impeach a defense witness (see, CPL 240.45 [a]). Similarly, we find no fault with the court's Sandoval ruling which permitted the People to elicit defendant's convictions for issuing a bad check, criminal possession of stolen property, larceny, burglary and "a felony" (see generally, People v. Sandoval, 34 N.Y.2d 371, 375).
Lastly, two jurors' brief and inadvertent viewing of defendant while he was handcuffed and being transported to the courtroom did not deprive defendant of a fair trial; County Court not only questioned these jurors regarding their encounters, but also provided clear curative instructions (see, People v. Dawson, 125 A.D.2d 860, 861; People v. Mattison, 97 A.D.2d 621, 623).
Judgment affirmed. Mahoney, P.J., Kane, Yesawich, Jr., and Mercure, JJ., concur.