| People v Perez |
| 2014 NY Slip Op 08772 [123 AD3d 592] |
| December 16, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Julio Perez, Appellant. |
Steven Banks, The Legal Aid Society, New York (Cheryl Williams of counsel), forappellant.
Robert T. Johnson, District Attorney, Bronx (Marc I. Eida of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Ann M. Donnelly, J.), rendered March 21,2011, as amended April 13, 2011, convicting defendant, after a jury trial, of assault in thefirst degree and criminal possession of a weapon in the second degree, and sentencinghim to concurrent terms of 10 and five years, respectively, unanimously modified, on thelaw, to the extent of vacating the sentence and remanding for resentencing, and otherwiseaffirmed.
Defendant's claim that his counsel was ineffective for failing to request a justificationcharge is unreviewable on direct appeal, since it involves matters of strategy not reflectedin the record (see People v KinWong, 81 AD3d 421 [1st Dept 2011], lv denied 16 NY3d 896 [2011]),and defendant has not made a CPL 440.10 motion. As an alternative holding, insofar asthe record permits review, we find that defendant received effective assistance under thestate and federal standards (see People v Benevento, 91 NY2d 708 [1998];see also Strickland v Washington, 466 US 668 [1984]). Defense counsel "was notineffective for failing to raise a justification defense that would have been weak, at best,and which might have undermined a stronger defense" (People v Rhodes, 281AD2d 225, 226 [1st Dept 2001], lv denied 96 NY2d 906 [2001]). Counselreasonably pursued a strategy of arguing that the People's eyewitnesses lacked credibility,and that their testimony was scarcely corroborated by any physical evidence.
Defendant's argument that the court should have given a justification charge isunpreserved, and we decline to review it in the interest of justice. As an alternativeholding, we find that the court properly refrained from charging justification, because itwas unsupported by any reasonable view of the evidence. Furthermore, regardless ofwhether such a charge was supported by a reasonable view of the evidence, a sua spontejustification charge would have interfered with defendant's strategy (see People v KinWong, 81 AD3d at 421; People v Johnson, 75 AD3d 426 [1st Dept 2010]).
However, defendant is entitled to be resentenced with an express determination as towhether to grant or deny youthful offender treatment (see People v Rudolph, 21 NY3d 497 [2013]). We reject thePeople's argument that the court satisfied its obligation pursuant to CPL 720.20 (1) [*2]by imposing a sentence incompatible with such treatmentafter defense counsel had requested it, because the court was still required to "make anexplicit determination on the record" (People v Smith, 113 AD3d 453, 454 [1st Dept 2014]).Concur—Mazzarelli, J.P., Andrias, Manzanet-Daniels, Feinman and Gische,JJ.