| People v Valdez |
| 2010 NY Slip Op 00204 [69 AD3d 452] |
| January 12, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JuanValdez, Appellant. |
—[*1] Juan Valdez, appellant pro se. Robert M. Morgenthau, District Attorney, New York (Grace Vee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered March 6, 2008,convicting defendant, after a jury trial, of attempted gang assault in the first degree, attemptedassault in the first degree and assault in the second degree, and sentencing him to an aggregateterm of seven years, unanimously affirmed.
Defendant challenges the sufficiency of the evidence supporting his conviction of attemptedgang assault in the first degree. However, we reject that claim. In particular, there was legallysufficient evidence to establish that two or more other persons actually present aided defendantin his attack on the victim, rather than committing a separate, subsequent assault (see People v Santos, 14 AD3d411, 412 [2005], lv denied 4 NY3d 856 [2005]).
While defendant sufficiently preserved his hearsay argument concerning a police officer'stestimony that several passersby told him defendant stabbed the victim (see People vRosen, 81 NY2d 237, 245 [1993]), the argument is unavailing. The trial court providentlyexercised its discretion in admitting this testimony for the legitimate nonhearsay purpose ofcompleting the narrative and explaining why the officer approached and arrested defendant(People v Tosca, 98 NY2d 660, 661 [2002]), particularly since defense counsel's openingstatement raised an issue about whether the police had any basis for arresting defendant.Defendant failed to preserve his arguments that the testimony could have been presented in a"less prejudicial manner" and that the court should have provided a limiting instruction, and wedecline to review them in the interest of justice.
Defendant's ineffective assistance of counsel claims primarily involve matters outside therecord concerning counsel's strategic decisions and are thus unreviewable on direct appeal(see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998[1982]). On the existing record, to the extent it permits review, we find defendant receivedeffective assistance under the state and federal standards (see People v Benevento, 91NY2d 708, 714 [1998]; see also Strickland v Washington, 466 US 668, 691-692 [1984]).Nothing in the record suggests that trial counsel should have pursued an intoxication defense (see People v Robetoy, 48 AD3d881, 882 [2008]; People v Giannattasio, 235 AD2d 548 [1997], lv denied 89NY2d 1093 [1997]). [*2]Furthermore, since counsel chose an "allor nothing" defense tactic of seeking an acquittal on all charges based upon alleged lack of proofthat defendant stabbed the victim, counsel's failure to request a justification charge was notineffective (see People v Castano, 236 AD2d 215 [1997], lv denied 89 NY2d1033 [1997]).
Defendant's other contentions, including his remaining pro se claims, are unpreserved andwe decline to review them in the interest of justice. As an alternative holding, we also rejectthem on the merits, except we find that it was inappropriate for the prosecutor to suggest onsummation that defendant's brother's presence in the courtroom may have been a device toconfuse the witnesses. However, this isolated remark was not egregious (compare People vAlicea, 37 NY2d 601 [1975]), and we find it to be harmless error (see People vD'Alessandro, 184 AD2d 114, 120 [1992], lv denied 81 NY2d 884 [1993]).Concur—Saxe, J.P., Catterson, Moskowitz, DeGrasse and Abdus-Salaam, JJ.