| People v Gordon |
| 2012 NY Slip Op 01354 [92 AD3d 580] |
| February 23, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Gerald Gordon, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered August 27,2009, convicting defendant, after a jury trial, of robbery in the first and second degrees, andsentencing him to an aggregate term of 17 years, unanimously affirmed.
Defendant claims he was improperly convicted of first-degree robbery under Penal Law§ 160.15 (4) (displaying what appeared to be a firearm) because the police recovered anoperable but unloaded pistol that the victim identified as having been displayed during therobbery. Defendant did not preserve this claim, and we decline to review it in the interest ofjustice. As an alternative holding, we reject it on the merits. We also find that the verdict was notagainst the weight of the evidence. Defendant now asserts that the weapon must have beenunloaded at the time of the robbery, so that the affirmative defense set forth in Penal Law §160.15 (4) was established. However, at trial, defendant testified and denied any involvement inthe robbery, and his defense was based entirely on issues of identification and credibility.Although the court offered to charge the affirmative defense, defense counsel expressly declinedthat offer. Since the court's charge governs our assessment of both the sufficiency (People v Ford, 11 NY3d 875, 878[2008]) and the weight (People vDanielson, 9 NY3d 342, 349 [2007]) of the evidence, we generally have no occasion toconsider a defense raised for the first time on appeal (see e.g. People v Williams, 15 AD3d 244, 246 [2005], lv denied5 NY3d 771 [2005]).
We note that the trial evidence permits an inference that defendant had an opportunity toseparately discard the pistol and its ammunition. Accordingly, "[t]he evidence was consistentwith the pistol having been loaded at the time of the crime, but unloaded at the time it wasrecovered" (id. at 245).
Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal becauseit involves matters outside the record concerning counsel's strategic reasons for declining topursue the affirmative defense (see People v Love, 57 NY2d 998 [1982]). According todefendant, the record reveals that counsel's waiver of the defense was not based on strategy buton a misunderstanding of the law. However, the sparse record is inconclusive as to counsel'sreasoning.[*2]
To the extent the trial record permits review, we concludethat defendant received effective assistance under the state and federal standards (see Peoplev Benevento, 91 NY2d 708, 713-714, [1998]; Strickland v Washington, 466 US 668[1984]). Defendant has not shown "the absence of strategic or other legitimate explanations" forthe conduct challenged on appeal (People v Rivera, 71 NY2d 705, 709 [1988]). Under allthe circumstances, it was a plausible strategy to focus exclusively on the issue ofmisidentification, that is, whether defendant committed the robbery at all (see People vLane, 60 NY2d 748, 750 [1983]; People v Williams, 15 AD3d at 245-246). In anyevent, defendant has not shown a reasonable probability that assertion of the affirmative defensewould have resulted in a more favorable verdict.
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P., Catterson,Renwick, Abdus-Salaam and Manzanet-Daniels, JJ.