| People v Pilgrim |
| 2017 NY Slip Op 00109 [146 AD3d 478] |
| January 10, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Raymond Pilgrim, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (David Bernstein ofcounsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Shera Knight of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Judith Lieb, J.), rendered February 3,2014, convicting defendant, after a jury trial, of assault in the second degree, andsentencing him, as a second violent felony offender, to a term of 6
By failing to object, by making generalized objections or an objection on a differentground from those raised on appeal, and by failing to request further relief afterobjections were sustained, defendant has failed to preserve (see People v Miller,89 NY2d 1077, 1079 [1997]) his challenge to the prosecutor's cross-examination of adefense witness about his failure to come forward to law enforcement authorities (seePeople v Dawson, 50 NY2d 311 [1980]), and we decline to review this claim in theinterest of justice. As an alternative holding, we reject it on the merits. The record as awhole, including matters elicited by defendant on direct examination, shows that the lineof questioning was generally permissible under Dawson, and was not prejudicial.Moreover, the court precluded a substantial portion of this line of inquiry. In any event,we find any error regarding the prosecutor's cross-examination to be harmless (seePeople v Crimmins, 36 NY2d 230 [1975]).
Defendant similarly failed to preserve his challenges to the prosecutor's summation,and we decline to review them in the interest of justice. As an alternative holding, wefind no basis for reversal.
The court providently exercised its discretion, and provided a meaningful response,when it asked the jury to clarify a note (see generally People v Almodovar, 62NY2d 126, 131 [1984]; People v Malloy, 55 NY2d 296, 302 [1982], certdenied 459 US 847 [1982]). The jury's request, which was subject to conflictinginterpretations, warranted clarification, and defendant has not demonstrated that he wasprejudiced by the court's inquiry.
Defendant's claim that counsel rendered ineffective assistance by failing to requestsubmission of a lesser included offense is unreviewable on direct appeal because itinvolves a matter of strategy not reflected in, or fully explained by, the record (seePeople v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998[1982]). Accordingly, since defendant has not made a CPL 440.10 motion, the merits ofthe ineffectiveness claims may not be addressed on appeal. In the alternative, to theextent the existing record permits review, we find that defendant received effectiveassistance under the state and federal standards (see People v Benevento, 91NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]).Defendant has not [*2]shown that it was objectivelyunreasonable for counsel to fail to request submission of the lesser offense, or that thereis a reasonable possibility that the request would have been led to a more favorableoutcome. Concur—Tom, J.P., Richter, Saxe, Gische and Gesmer, JJ.