| People v Reyes |
| 2009 NY Slip Op 04008 [62 AD3d 570] |
| May 21, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v EarlReyes, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Mary C. Farrington of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J., at suppressionhearing; Michael J. Obus, J., at jury trial and sentence), rendered December 14, 2007, convictingdefendant of murder in the second degree, and sentencing him to a term of 25 years to life,unanimously affirmed.
The court properly denied defendant's motion to suppress a statement. After arrestingdefendant for a homicide involving a firearm, but prior to giving him Miranda warnings,the police asked defendant the location of the weapon. Defendant gestured toward a bookcase,where the police found a revolver whose cylinder was missing. The officer asked defendant thewhereabouts of the cylinder, and defendant said he threw it out the window. Defendant concedesthat the question about the weapon was permissible under the public safety exception to therequirement of Miranda warnings (see New York v Quarles, 467 US 649[1984]), but argues that once the inoperable weapon was located there was no longer any safetyconcern warranting the question about the cylinder. However, we conclude that this simplefollow-up question was prompted by objectively reasonable safety concerns, particularly sinceother people were in the apartment. The police needed to determine whether this evidentlyinoperable weapon was actually the weapon used in the homicide, or whether another weaponwas present. In addition, there were foreseeable circumstances under which a detached, butloaded cylinder could be dangerous. In any event, any error in admitting defendant's responsethat he discarded the cylinder was harmless (see People v Crimmins, 36 NY2d 230[1975]). At trial there was no question that defendant possessed a firearm; defendant, whoasserted a justification defense, testified that he shot the victim. Although the trial prosecutorargued that defendant's disposal of the cylinder evinced a consciousness of guilt, that argumentadded little or nothing to the prosecution's case, and the dismantled weapon itself formed a basisfor the argument even without the challenged statement.
When defendant, after consulting with but rejecting the advice of his attorney, personallymade the decision to forgo submission of any lesser included offenses, "this did not constituteself-representation requiring the court to warn him of the risks of proceeding pro se" (People v [*2]Blak, 6 AD3d 301, 302 [2004], lv denied 3 NY3d637 [2004]). Although such a strategic decision is normally made by counsel, it does not followthat when counsel acceded to his client's wish, defendant was then effectively proceeding pro se.Defendant was still represented by counsel, whose advice he chose to reject. Defendant'sparticipation in the trial, consisting only of making a particular decision, was less than that of thedefendant in People v Cabassa (79 NY2d 722, 730-731 [1992], cert denied sub nom.Lind v New York, 506 US 1011 [1992]) who delivered his own summation but was held notto have relinquished the right to counsel. Finally, although we do not decide that such a colloquywas necessary, we note that the court engaged in a thorough inquiry into defendant'sunderstanding of the consequences of forgoing any submission of lesser included offenses.
Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal becauseit involves matters outside the record concerning counsel's summation strategy and anyconsultations he may have had with defendant concerning that 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]).Concur—McGuire, J.P., Acosta, DeGrasse, Richter and Abdus-Salaam, JJ.