| People v Cates |
| 2012 NY Slip Op 01335 [92 AD3d 553] |
| February 21, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Walter Cates, Sr., Appellant. |
—[*1] Walter Cates, Sr., appellant pro se. Robert T. Johnson, District Attorney, Bronx (Thomas R. Villecco of counsel) forrespondent.
Judgment, Supreme Court, Bronx County (John W. Carter, J.), rendered June 10, 2009,convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to aterm of 25 years to life, unanimously affirmed.
The court properly declined to charge assault in the third degree as a lesser included offensesince there was no reasonable view of the evidence, viewed in a light most favorable todefendant, that he was guilty of that charge but not of either murder or manslaughter. Nothing ineither the People's case or defendant's testimony supported a theory that defendant participated inthe vicious beating of the victim, but was merely a bystander to the victim's immediately ensuingdeath by strangulation (see People vMartinez, 30 AD3d 353 [2006], lv denied 7 NY3d 868 [2006]). Under theevidence, defendant either acted with a community of purpose with the other participantsthroughout the incident, or he did not participate at all and was not guilty of any crime (seee.g. People v White, 29 AD3d457 [2006], lv denied 7 NY3d 819 [2006]).
Defendant's pro se ineffective assistance of counsel claims are unreviewable on direct appealfor lack of a sufficient record (see People v Love, 57 NY2d 998 [1982]). On the existingrecord, to the extent it permits review, we find that defendant received effective assistance under[*2]the state and federal standards (see People vBenevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668[1984]). Defendant's remaining pro se claims are without merit. Concur—Andrias, J.P.,Saxe, Acosta, Freedman and Richter, JJ.