| People v Cruz |
| 2011 NY Slip Op 07286 [88 AD3d 540] |
| October 18, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v ElioCruz, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sheryl Feldman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered December 13,2005, convicting defendant, after a jury trial, of murder in the second degree, and sentencing himto a term of 18 years to life, unanimously affirmed.
Defendant's ineffective assistance claims primarily involve matters outside the recordconcerning counsel's strategic choices and defendant's input into those choices (see People vLove, 57 NY2d 998 [1982]). Although defendant raised these claims in an unsuccessful CPL440.10 motion, defendant's motion for leave to appeal to this Court was denied (see CPL450.15 [1]; 460.15). Accordingly, while defendant's claims are cognizable on direct appeal, ourreview is limited to the trial record (seePeople v Evans, 16 NY3d 571, 575 [2011]). To the extent the trial record permitsreview, we conclude 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]).
Defendant has not shown "the absence of strategic or other legitimate explanations" for thevarious aspects of counsel's conduct challenged on appeal (People v Rivera, 71 NY2d705, 709 [1988]). On the contrary, the trial record, including a detailed statement by counsel thatdefendant expressly ratified, shows that counsel had a legitimate explanation for declining topursue any defense that would have led to a manslaughter conviction, including extremeemotional disturbance or lack of homicidal intent. Defendant maintained his complete innocence,and his counsel appropriately respected his client's desire to pursue an all-or-nothing strategy(see People v Petrovich, 87 NY2d 961 [1996]; People v Jacotin, 304 AD2d 447[2003], lv denied 100 NY2d 595 [2003]).
To the extent that there is any merit in defendant's other claims that counsel's performancewas deficient, defendant cannot demonstrate that he was prejudiced, in light of hisacknowledgment on appeal that his trial testimony was patently incredible and that hisall-or-nothing defense had virtually no hope of success. Defendant's chosen defense was soimplausible that it would have failed no matter how well his counsel investigated and tried thecase.
Counsel also made a reasonable strategic choice when, rather than requesting a mistrial,[*2]he successfully moved for the replacement of two jurors whodisparaged counsel during the trial. To the extent that, aside from the issue of ineffectiveassistance, defendant directly challenges the court's resolution of the incident of the two jurors,his arguments are unpreserved, waived and procedurally defective (see People v Garcia,298 AD2d 107 [2002], lv denied 99 NY2d 558 [2002]), and we decline to review them inthe interest of justice. Concur—Saxe, J.P., Friedman, Moskowitz, Freedman and Richter,JJ.