| People v Rodriguez |
| 2015 NY Slip Op 07995 [133 AD3d 619] |
| November 4, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v William Rodriguez, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Erica Horwitz of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Ayelet Sela of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Camacho, J.), rendered April 17, 2012, convicting him of robbery in the first degree,upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
At the defendant's arraignment on a felony complaint with respect to the instantcharges involving robbery, his codefendant's attorney noted that the codefendant hadmade a statement to a police detective in which he claimed that the defendant went withthe codefendant to buy a sign from the victim, the codefendant and the victim engaged ina knife fight, and the defendant tried to break up the fight. The defendant's attorney notedthat the defendant was wounded in the confrontation and required "extensive medicalattention."
Prior to his indictment, the defendant was offered a plea agreement whereby hewould plead guilty to robbery in the second degree in exchange for a promised sentenceof seven years in prison. After he was indicted, inter alia, for robbery in the first degree,the offer was withdrawn, and the defendant pleaded guilty to robbery in the first degreein exchange for a promised sentence of the statutory minimum of 10 years in prison(see Penal Law § 70.04 [3]) plus five years of postreleasesupervision (see Penal Law § 70.45 [2]). The defendant requested ahearing on the issue of whether he received the ineffective assistance of counsel,claiming his former attorney was ineffective for advising him to reject the pre-indictmentoffer. The Supreme Court denied the defendant's request.
On appeal, the defendant contends that the Supreme Court erred in rejecting hisclaim of ineffective assistance without a hearing. The question in this case is whether thestrategic decision to wait and see how the case progressed before accepting a plea offerwas "consistent with strategic decisions of a 'reasonably competent attorney' "(People v Oathout, 21NY3d 127, 132 [2013], quoting People v Benevento, 91 NY2d 708, 712[1998]; see People v Nicelli,121 AD3d 1129, 1130 [2014]). Here, the defendant proffered a possible defense thathis codefendant was responsible for the crime, and the defendant merely tried to defusethe confrontation, resulting in injury to himself. Under the circumstances, contrary to thedefendant's contention, the record reveals that there were strategic or legitimateexplanations for the alleged instance of ineffective assistance by the defendant's counsel(see People v Prince, 128AD3d 987, 988 [2015]; People v Nash, 52 AD3d 739, 739 [2008]).
Accordingly, the Supreme Court properly rejected the defendant's claim ofineffective assistance of counsel without a hearing. Rivera, J.P., Leventhal, Austin andHinds-Radix, JJ., concur.