| People v Cordova-Diaz |
| 2008 NY Slip Op 07743 [55 AD3d 360] |
| October 14, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JasonCordova-Diaz, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Allen H. Saperstein of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered December 19,2005, convicting defendant, after a jury trial, of attempted murder in the second degree, andsentencing him, as a second felony offender, to a term of 15 years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis fordisturbing the jury's determinations concerning credibility.
The court properly admitted limited evidence concerning the marijuana-traffickingrelationship between defendant and the victim. This evidence was highly probative of motive,and we note that even on this appeal, in challenging the sufficiency and weight of the evidence,defendant argues that he lacked a motive for the crime. The court properly rejected defendant'ssuggestion that the evidence should have been limited to testimony about a dispute over a moneydebt, since such an attempt to sanitize the evidence would have unduly diminished its probativevalue (see People v Chebere, 292 AD2d 323 [2002], lv denied 98 NY2d 673[2002]). This evidence was also necessary to explain aspects of the victim's testimony, whichwould have been incomprehensible to the jury had all references to drug dealing been excised.The probative value of this evidence outweighed its prejudicial effect, which the court minimizedby way of a limiting instruction.
Defendant's arguments concerning the prosecutor's cross-examination of alibi witnesses andthe court's failure to discharge a juror who was arrested during the trial for possession ofmarijuana are unpreserved and we decline to review them in the interest of justice. As analternative holding, we also reject them on the merits.
Defendant's claim that his attorney rendered ineffective assistance when he asked the courtnot to discharge the juror-arrestee is unreviewable on direct appeal because it involves tacticalmatters outside the record (see People v Rivera, 71 NY2d 705, 709 [1988]; People vLove, 57 NY2d 998 [1982]). An attorney's evaluation of whether a particular juror is likelyto be favorable or unfavorable is a quintessentially tactical decision. On the existing record, tothe extent it permits review, we find that defendant received effective assistance under the stateand federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; seealso Strickland v Washington, 466 US 668 [1984]). Under the circumstances of the case, areasonably competent [*2]trial attorney may have had soundreasons for being eager to keep a juror who had been arrested for marijuana possession.Concur—Mazzarelli, J.P., Friedman, Nardelli, Williams and Freedman, JJ.