| People v Alvarez |
| 2013 NY Slip Op 03603 [106 AD3d 568] |
| May 21, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Celso Alvarez, Appellant. |
—[*1] Celso Alvarez, appellant pro se. Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), forrespondent.
Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered June22, 2010, convicting defendant, after a jury trial, of murder in the second degree, robberyin the first degree (three counts) and robbery in the second degree, and sentencing him toan aggregate term of 22 years to life, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibilitydeterminations, and its rejection of defendant's theory that he was a victim of the robberyrather than a participant. The testimony of the cooperating accomplice was amplysupported by the testimony of other witnesses, as well as other evidence, including,among other things, the telephone records of defendant and his accomplices from thenight of the robbery.
Defendant's claim that his counsel rendered ineffective assistance by permittingdefendant to choose whether to assert the felony murder affirmative defense (seePenal Law § 125.25 [3]) is unreviewable on direct appeal because it involvesmatters not reflected in, or not fully explained by, the trial record (see People vRivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]).The record is unclear as to whether counsel waived this defense solely at defendant'srequest, or "after consulting with and weighing the accused's views along with otherrelevant considerations" (Peoplev Colville, 20 NY3d 20, 32 [2012]). On the existing record, to the extent itpermits review, we find that defendant received effective assistance under the state andfederal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998];see also Strickland v Washington, 466 US 668 [1984]). Even assuming counseldeferred to defendant's wishes with regard to asserting the affirmative defense, it wasobjectively reasonable for counsel to do so, given the nature of an affirmative defense(see People v Petrovich, 87 NY2d 961, 963 [1996]; see also Colville, 20NY3d at 31-32).
Defendant's pro se ineffective assistance arguments are likewise unreviewablebecause [*2]they turn on matters outside the record; tothe extent the record permits review of these arguments, we find them to be withoutmerit. We have considered and rejected defendant's other pro se claims.
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Acosta,Renwick, DeGrasse and Richter, JJ.