| People v Howze |
| 2008 NY Slip Op 09452 [57 AD3d 220] |
| December 2, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Richard Howze, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Ellen Stanfield Friedman of counsel),for respondent.
Judgment, Supreme Court, New York County (A. Kirke Bartley, J.), rendered March 20,2007, convicting defendant, after a jury trial, of burglary in the third degree, and sentencing him,as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.
The court properly exercised its discretion in denying defendant's challenge for cause to aprospective juror who had been the victim of property crimes. The panelist never said anythingthat would "cast serious doubt on [her] ability to render an impartial verdict" (People vArnold, 96 NY2d 358, 363 [2001]), and, in any event, she then gave the court anunequivocal assurance of her impartiality. Given the totality of her responses, the panelist'sassurance was not rendered equivocal by her use of the phrases "I don't think I could not beimpartial," and "I will do my best" (see People v Chambers, 97 NY2d 417, 419 [2002]).
Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal becauseit primarily involves matters outside the record concerning counsel's strategy (see People vRivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). During thetrial, counsel observed some type of interaction between a juror and a witness in the hallwayoutside the courtroom and called it to the court's attention, but only asked if the court could try tokeep jurors and witnesses separated. On appeal, defendant argues that his trial counsel shouldhave requested an inquiry into the incident, and could not have had a reasonable strategic reasonfor failing to do so. We disagree, because counsel may have concluded that the incident wasinnocuous and that an inquiry could have led to, for example, embarrassing, antagonizing or evendisqualifying a juror counsel may have viewed as favorable to the defense. On the existingrecord, to the extent it permits review, we find that defendant received effective assistance underthe state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998];see also Strickland v Washington, 466 US 668 [1984]). Concur—Mazzarelli, J.P.,Saxe, Catterson, Renwick and Freedman, JJ.