| People v Rodriguez |
| 2008 NY Slip Op 01588 [48 AD3d 312] |
| February 21, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Christopher Rodriguez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Olivia Sohmer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered April 27, 2005,convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him to aterm of seven years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Bleakley, 69NY2d 490 [1987]). On the contrary, there was overwhelming evidence of defendant's guilt,consisting of the victim's reliable testimony and extensive circumstantial evidence.
The court properly precluded defendant from introducing an alleged prior inconsistentstatement by the victim about how the burglar may have entered her apartment, because byfailing to confront the victim with the statement and ask her whether she made it, defendantfailed to lay a proper foundation (see People v Wise, 46 NY2d 321, 326 [1978]). To theextent that defendant is raising a constitutional right to introduce this evidence, such claim isunpreserved and we decline to review it in the interest of justice. As an alternative holding, wealso reject it on the merits (see Crane v Kentucky, 476 US 683, 689-690 [1986];Delaware v Van Arsdall, 475 US 673, 678-679 [1986]).
To the extent that defendant's ineffective assistance of counsel claims involve counsel'schoice of defense theories, those claims are unreviewable on direct appeal because they involvematters outside the record (see People v Rivera, 71 NY2d 705, 709 [1988]; People vLove, 57 NY2d 998 [1982]). On the existing record, to the extent it permits review, we findthat defendant received effective assistance under the state and federal standards (see Peoplev Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466US 668 [1984]). Counsel provided effective assistance at both trial and sentencing, anddefendant's claims to the contrary are without merit. To the extent that defendant claims hiscounsel should have questioned the victim about the alleged inconsistency concerning theburglar's possible means of entry, we find that counsel's failure to do so did not cause anyprejudice, because the alleged inconsistency was insignificant, because counsel was still able toplace it before the jury in an indirect manner, and because his overall impeachment of thevictim's testimony was effective. We perceive no basis for reducing the sentence.
Defendant's remaining contentions are unpreserved and we decline to review them in the[*2]interest of justice. As an alternative holding, we also rejectthem on the merits. Concur—Lippman, P.J., Andrias, Nardelli, Buckley and Acosta, JJ.