| People v Malaussena |
| 2007 NY Slip Op 07369 [44 AD3d 349] |
| October 4, 2007 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JohnMalaussena, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Jacob Kaplan of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered September 6,2005, convicting defendant, after a jury trial, of murder in the second degree, and sentencing himto a term of 25 years to life, unanimously affirmed.
The court properly denied defendant's request for an intoxication charge, since the evidence,viewed most favorably to defendant, was insufficient to cast doubt on his homicidal intent on thatbasis (see People v Gaines, 83 NY2d 925, 927 [1994]; People v Rodriguez, 76NY2d 918, 920 [1990]; People vManning, 1 AD3d 241 [2003], lv denied 1 NY3d 630 [2004]). While there wasevidence of defendant's alcohol or cocaine consumption, there was no evidence that could raise areasonable doubt as to whether his faculties were so impaired at the time of the crime that hecould not have formed the requisite intent.
The court properly denied defendant's motion to suppress statements. His statements madeprior to Miranda warnings were not the product of custodial interrogation, because areasonable innocent person in defendant's position would not have thought he was in custody(see People v Yukl, 25 NY2d 585 [1969], cert denied 400 US 851 [1970]; People v Dillhunt, 41 AD3d 216[2007]). In any event, the only statements that defendant made to the police prior to theadministration of Miranda warnings had no inculpatory value within the context of thecase (see People v Prater, 258 AD2d 600 [1999], lv denied 93 NY2d 1005[1999]).
Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal becauseit involves a matter outside the record concerning strategy (see People v Rivera, 71 NY2d705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). On the existing record, to theextent it permits review, we find that defendant received effective assistance under the state andfederal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see alsoStrickland v Washington, 466 US 668 [1984]) when his attorney requested the court tocharge second-degree manslaughter as a lesser included offense, but not first-degreemanslaughter. Counsel could have been employing a plausible strategy in seeking to limit theconviction to a class C felony in the event the jury did not find that he acted with intent to kill.Concur—Mazzarelli, J.P., Saxe, Sullivan, Catterson and Kavanagh, JJ. [See 9Misc 3d 1110(A), 2005 NY Slip Op 51482(U).]