| People v Alvarez |
| 2008 NY Slip Op 04227 [51 AD3d 470] |
| May 6, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Giancarlo Alvarez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Olivia Sohmer of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered November20, 2006, as amended December 15, 2006, convicting defendant, after a jury trial, of robbery inthe first degree (two counts), robbery in the second degree (two counts) and attempted robbery inthe first and second degrees, and sentencing him to an aggregate term of six years, unanimouslyaffirmed.
Defendant's challenges to the admissibility of evidence and to the court's jury instructions areunpreserved and we decline to review them in the interest of justice. As an alternative holding,we also reject them on the merits, except that we find the court's receipt of testimony concerningphotographic identifications to be harmless error (see People v Johnson, 32 NY2d 814,816 [1973]).
Defendant's ineffective assistance of counsel claims are unreviewable on direct appealbecause they involve matters outside the record, particularly regarding counsel's strategicdecisions and the asserted availability of an alibi defense (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]). Defense counsel pursued a reasonablestrategy primarily aimed at establishing that the main complainant falsely accused defendant ofthe robbery after defendant rejected that complainant's sexual advances, and the acts of counselthat defendant challenges on appeal were [*2]consistent with thatstrategy. Furthermore, counsel's alleged errors did not cause defendant any prejudice orcompromise his right to a fair trial. Concur—Tom, J.P., Andrias, Nardelli and Williams,JJ.