| People v Clarke |
| 2008 NY Slip Op 07766 [55 AD3d 370] |
| October 16, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v OwenClarke, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sheila O'Shea of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered April 25,2006, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencinghim, as a second violent felony offender, to a term of 8 to 16 years, unanimously affirmed.
Defendant raises an ineffective assistance of counsel claim based upon the failure of defensecounsel to seek submission of second-degree manslaughter to the jury as a lesser includedoffense of second-degree murder. On the existing record, we find that defendant has failed todemonstrate "the absence of strategic or other legitimate explanations" (People v Rivera,71 NY2d 705, 709 [1988]) for counsel's actions, and that defendant received effective assistanceunder the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714[1998]; see also Strickland v Washington, 466 US 668 [1984]). The trial record supportsthe conclusion that defense counsel had chosen an "all-or-nothing" strategy (see People vLane, 60 NY2d 748, 750 [1983]) in that she opposed the prosecutor's request to chargefirst-degree manslaughter, and she withdrew her request to submit first- and second-degreeassault. The fact that defense counsel requested an intoxication charge is consistent with such astrategy, since intoxication goes to the issue of intent. Defendant would have been entitled to acomplete acquittal if the jury found that he was [*2]toointoxicated to form an intent to kill or seriously injure the victim, and the record supports theinference that this was counsel's goal. Concur—Lippman, P.J., Andrias, Buckley, Sweenyand Renwick, JJ.