| People v Deas |
| 2013 NY Slip Op 00124 [102 AD3d 464] |
| January 10, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Herbert Deas, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), forrespondent.
Judgment, Supreme Court, New York County (Marcy L. Kahn, J., at suppressionhearing; Ronald A. Zweibel, J., at nonjury trial and sentencing), rendered March 3, 2011,convicting defendant of burglary in the second degree and two counts of attemptedrobbery in the second degree, and sentencing him, as a persistent violent felony offender,to concurrent terms of 16 years to life, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (People vDanielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing thecourt's determinations concerning credibility. The evidence supported the conclusion thata bank employee sustained physical injury during this incident. Relatively minor injuries(see People v Chiddick, 8NY3d 445, 447 [2007]), including injuries not requiring medical treatment (seePeople v Guidice, 83 NY2d 630, 636 [1994]) may meet the statutory threshold forphysical injury. Here, the victim sustained injuries to his shin and elbow that interferedwith his walking, writing and sleeping for several days.
The hearing court properly denied defendant's motion to suppress his statements topolice. When the evidence of the conversation between defendant and a detective isviewed in its entirety, it supports the court's finding that defendant did not unequivocallyinvoke his right to remain silent or notify the police that he wished to cease the interview(see People v Cole, 59AD3d 302 [1st Dept 2009], lv denied 12 NY3d 924 [2009]). In any event, inlight of the overwhelming evidence of defendant's guilt, any error in admitting thechallenged statement was harmless (see People v Crimmins, 36 NY2d 230[1975]).
Defendant's ineffective assistance of counsel claims are unreviewable on directappeal because they involve matters outside the record concerning counsel's strategicchoices (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love,57 NY2d 998 [1982]). On the existing record, to the extent it permits review, we findthat defendant received effective assistance under the state and federal standards (seePeople v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland vWashington, 466 US 668 [1984]). The record does not establish that counsel shouldhave pursued an intoxication defense, that such a defense was likely to have succeeded,or that any comments defense counsel made in colloquies with the trial court [*2]undermined defendant's case or affected the outcome of thetrial.
The sentencing record fails to support defendant's assertion that the sentences on theattempted robbery convictions did not reflect the court's true intent. We perceive no basisfor any reduction of sentence. Concur—Friedman, J.P., Sweeny, Acosta,Abdus-Salaam and Manzanet-Daniels, JJ.