| People v Syphrett |
| 2008 NY Slip Op 09706 [57 AD3d 286] |
| December 11, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JamesSyphrett, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Jared Wolkowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (Budd G. Goodman, J.), rendered September28, 2005, convicting defendant, after a jury trial, of robbery in the first degree, criminalpossession of a weapon in the third degree and grand larceny in the third degree, and sentencinghim, as a persistent violent felony offender, to an aggregate term of 20 years to life, unanimouslyaffirmed.
The evidence was legally sufficient to establish that defendant used force to take or retain theproperty, as required to prove robbery, and the verdict was not against the weight of the evidence(see People v Danielson, 9 NY3d342, 348-349 [2007]). Testimony that defendant bumped a store employee with such "severeforce" that she nearly landed on her manager who was walking a half step behind her, and thatdefendant then grabbed her bag, established a forcible taking (see People v Odom, 30 AD3d 226 [2006], lv denied 7NY3d 903 [2006]). Additionally, defendant fled with the bag containing nearly $6,000 anddisplayed a box cutter to the manager, who was pursuing him, at the same time that a passerbygrabbed the bag of money from defendant's hand. This supports a conclusion that defendant usedforce to retain the property rather than merely to escape (see People v Brandley, 254AD2d 185 [1998], lv denied 92 NY2d 1028 [1998]). The record fails to supportdefendant's contrary description of the sequence of events.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appealbecause they involve matters outside the record concerning counsel's strategy (see People vRivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). On theexisting record, to the extent it permits review, we find that defendant received effectiveassistance under 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 actions ofcounsel challenged by defendant on appeal were reasonable strategic decisions. In particular, wesee no reason to fault counsel for pursuing acquittals on all counts and avoiding any line ofdefense that would have led, at least, to a grand larceny conviction, thus exposing his client topossible sentencing as a discretionary persistent felony offender. In any event, defendant has notestablished that even if his counsel's actions were unreasonable, they affected the outcome of thecase, caused defendant any prejudice [*2]or deprived him of a fairtrial. Concur—Andrias, J.P., Saxe, Sweeny, Catterson and Moskowitz, JJ.