| People v Perez |
| 2008 NY Slip Op 00042 [47 AD3d 409] |
| January 3, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Bernard Perez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Gina Mignola of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered July 13, 2004,convicting defendant, after a jury trial, of murder in the first degree, murder in the second degree(four counts), robbery in the first degree (four counts) and burglary in the first degree (twocounts), and sentencing him to an aggregate term of life without parole, unanimously affirmed.
Defendant argues that his counsel was ineffective for arguing, with respect to one of the twomurders of which defendant was convicted, that his confession was false, while at the same timepursuing a defense of extreme emotional disturbance. Defendant argues that counsel should haverelied exclusively on the latter defense. These claims are unreviewable on direct appeal becausethey involve matters outside the record concerning counsel's strategic choices (see People vRivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). Werecognize that trial counsel is deceased, but defendant had ample opportunity to contact him witha view to making a CPL 440.10 motion, since there was a period of over two years between theconviction and counsel's death and defendant was represented by present appellate counselduring most of that time. On the existing record, to the extent it permits review, we find thatdefendant received effective assistance under the state and federal standards (see People vBenevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466US 668 [1984]). The extreme emotional disturbance claim was weak, and "[w]e cannot say thatthe tactic of offering the jury an alternative theory to acquit defendant, although risky andultimately unavailing, did not reflect, under the circumstances of this case, a reasonable andlegitimate strategy." (People v Brito, 304 AD2d 320, 321 [2003], lv denied 100NY2d 592 [2003].) The record also establishes that defendant's other ineffective assistanceclaims, including those related to evidentiary issues, jury instructions and sentencing, are withoutmerit.
At the suppression hearing, the court permitted defendant to introduce extensive evidence ofhis alleged mental illness in support of his claim that his confessions were involuntary. The courtproperly exercised its discretion in denying defendant a continuance for the purpose ofintroducing even more evidence on this issue, since the proposed evidence was cumulative orirrelevant. Defendant did not preserve his claim that he was constitutionally entitled to introduceadditional evidence at the suppression hearing (see e.g. People v Fronjian, 22 AD3d 244[2005], [*2]lv denied 6 NY3d 776 [2006]), and wedecline to review it in the interest of justice. Were we to review this claim, we would find itwithout merit.
The court properly denied defendant's motion to sever the counts of the indictment relating tothe two murders, which were properly joined on the basis of overlapping evidence (seeCPL 200.20 [2] [b]), especially with regard to defendant's confessions and their surroundingcircumstances. In addition, the counts were joined on the basis of legal similarity (seeCPL 200.20 [2] [c]), and defendant did not establish good cause for a discretionary severanceunder either prong of CPL 200.20 (3) (see e.g. People v Oliveira, 2 AD3d 122 [2003], lv denied 1 NY3d632 [2004], cert denied 543 US 840 [2004]).
The court properly admitted evidence concerning a statement to the police by a nontestifyingdeclarant, to which defendant objected solely on state-law hearsay grounds, since this evidencewas not received for its truth, but for the legitimate, nonhearsay purpose of completing thenarrative of events and explaining police actions (see People v Tosca, 98 NY2d 660[2002]; People v Rivera, 96 NY2d 749 [2001]). Defendant did not preserve his otherarguments concerning this evidence, including his Confrontation Clause claim, and we decline toreview them in the interest of justice. Were we to review these claims, we would reject them.
We perceive no basis for reducing the sentence. Concur—Andrias, J.P., Nardelli,Buckley and Catterson, JJ.