| People v Alexander |
| 2010 NY Slip Op 03250 [72 AD3d 559] |
| April 22, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v PaulAlexander, Appellant. |
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Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered July 17, 2008,convicting defendant, after a jury trial, of bribery in the third degree and unlawful possession ofmarijuana, and sentencing him, as a second felony offender, to an aggregate term of 3 to 6 years,unanimously affirmed.
Defendant's ineffective assistance of counsel claims, including those raised in his pro sesupplemental brief, are unreviewable on direct appeal because they involve counsel's strategicdecisions and other matters outside the record (see People v Rivera, 71 NY2d 705, 709[1988]; People v Love, 57 NY2d 998 [1982]). On the existing record, to the extent itpermits review, we find that defendant received effective assistance under the state and federalstandards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see alsoStrickland v Washington, 466 US 668 [1984]). In particular, counsel had no reason torequest instructions on the defenses of duress (Penal Law § 40.00) or emergencyjustification (Penal Law § 35.05 [2]) because those defenses had no applicability to thefacts. Even assuming that, when viewed most favorably to defendant, the evidence supports atheory that defendant's offer of an unsolicited bribe to avoid arrest was the result of violentthreats by the officer, that theory would still not support these defenses. There was no evidencethat defendant had been threatened with imminent harm, and his remedy, under the view of thefacts posited on appeal, would have been to report the officer's threats to the proper authoritiesinstead of offering him an unsolicited bribe. We note that defendant concedes that the evidencedid not support the extortion/coercion defense to bribery (Penal Law § 200.05). In anyevent, regardless of whether counsel should have asked for instructions on these additionaldefenses, the lack of those instructions could not have prejudiced defendant because neither ofthese defenses had any hope of success.
With regard to defendant's challenges to the court's responses to jury notes, the only one thatis arguably preserved is his claim that the court should not have specifically told the jury thatalthough there is an extortion/coercion defense to bribery, that defense was not made out andthus could not be considered. We reject that argument, because, as defendant now concedes, thedefense was not made out, and it was appropriate in light of the defense summation and the jury'snote to put that issue to rest by telling the jury the court "had made a legal determination [*2]that this defense did not apply"(People v Moreno, 58 AD3d 516, 518 [2009], lv denied 12NY3d 819 [2009]). Defendant did not preserve any other challenges to the court's supplementaljury instructions and we decline to review them in the interest of justice. As an alternativeholding, we also reject them on the merits.
We perceive no basis for reducing the sentence.
We have considered and rejected defendant's remaining pro se claims. Concur—Tom,J.P., Mazzarelli, Acosta, DeGrasse and Richter, JJ.
Motion seeking leave to file a pro se supplemental reply brief denied.