Peoplev.Sanders

Appellate Division of the Supreme Court of New York, First DepartmentDec 13, 2001
289 A.D.2d 101 (N.Y. App. Div. 2001)
289 A.D.2d 101735 N.Y.S.2d 24

5605

December 13, 2001.

Judgment, Supreme Court, Bronx County (Barbara Newman, J.), rendered July 26, 1999, convicting defendant, after a jury trial, of two counts of assault in the first degree, and sentencing him to concurrent terms of 12½ to 25 years, unanimously affirmed.

Cheryl D. Harris, for respondent.

Dennis J. Doody, for defendant-appellant.

Before: Wallach, J.P., Lerner, Rubin, Buckley, Friedman, JJ.


The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the jury's determinations concerning credibility and identification. The testimony of the victim and an eyewitness was corroborated by physical evidence and defendant's incriminating statements.

Defendant's claim that his trial counsel's advice not to testify constituted ineffective assistance of counsel implicates strategic discussions between defendant and counsel that are dehors the record. Accordingly, this claim is unreviewable on direct appeal (see, People v. Love, 57 N.Y.2d 998). To the extent the present record permits review, we conclude that defendant received meaningful representation (see, People v. Benevento, 91 N.Y.2d 708, 713-714), including sound advice not to testify (see, People v. Natal, 102 A.D.2d 496, 503, affd 66 N.Y.2d 802).

The challenged portions of the prosecutor's summation did not deprive defendant of a fair trial, since there was no pattern of egregious misconduct and the court's curative actions were sufficient to prevent any prejudice (see, People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884).

We perceive no basis for reduction of sentence.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.