| People v Reyes |
| 2011 NY Slip Op 03657 [84 AD3d 426] |
| May 3, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Richard Reyes, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Deborah L. Morse of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered January 14,2009, convicting defendant, after a jury trial, of criminal sale of a controlled substance in thethird degree and criminal possession of a controlled substance in the third degree, and sentencinghim, as a second felony drug offender, to an aggregate term of 3½ years, unanimouslyaffirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's credibility determinations. In this observation sale case, the officer'stestimony was corroborated by the recovery of a significant amount of drugs, with distinctivemarkings on their packaging, from defendant.
Defendant claims his counsel provided ineffective assistance by not requesting the court tocharge seventh-degree possession as a lesser included offense. That claim is unreviewable ondirect appeal because it involves matters of strategy outside the record (see People vRivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). We do notfind it unreasonable per se for an attorney to concede a defendant's guilt of conduct that wouldconstitute a lesser included offense while still seeking to avoid a conviction of any offense.Nevertheless, any facts which may have supported the decision to seek a complete acquittal aredehors the record (cf. People vColville, 79 AD3d 189 [2010] [counsel reasonably accepted client's decision not torequest lesser-included offenses]). A fortiori, so are any facts that would support a reversal basedon ineffective assistance.
The court's Sandoval ruling, which precluded the People from identifying the natureof defendant's felony convictions, and only permitted them to expose the fact that he had been[*2]convicted of three felonies, balanced the appropriate factorsand was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002];People v Walker, 83 NY2d 455, 458-459 [1994]; People v Pavao, 59 NY2d 282,292 [1983]). Concur—Mazzarelli, J.P., Andrias, Moskowitz, Richter andManzanet-Daniels, JJ.