| People v Henriquez |
| 2017 NY Slip Op 01519 [147 AD3d 706] |
| February 28, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Ramon Henriquez, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Brittany N. Francis of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered September 8,2014, convicting defendant, after a jury trial, of attempted assault in the first degree, assault inthe second degree, and criminal possession of a weapon in the third degree, and sentencing him,as a second violent felony offender, to an aggregate term of 13 years, unanimously affirmed.
The court providently exercised its discretion when it denied defendant's request for missingwitness charges concerning three eyewitnesses to the stabbing. The People sufficientlyestablished that the victim's half brother, who was present at the stabbing but whose contactswith the victim were very limited, was unavailable (see People v Savinon, 100 NY2d 192[2003]). His whereabouts were unknown by the time of trial, and the People, despite diligentefforts, including attempts to serve him with a subpoena at his last known address, could notlocate him, and could not procure his attendance. Thus, the record establishes that the People didnot "merely go through the motions of asking [the] witness to testify," with the "ulterior goal ofkeeping the witness off the stand" (id. at 200; see People v Brooks, 62 AD3d 511, 511 [1st Dept 2009], lvdenied 12 NY3d 923 [2009]). Regarding the two other eyewitnesses, defendant failed toestablish that they were in the People's control for purposes of a missing witness charge,regardless of whether they were available. Even if they were friends of the victim's half brother,there was no evidence that they were friends of the victim; on the contrary, there was evidencethat they were neighbors and friends of defendant.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appealbecause they involve matters 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 of theineffectiveness claims may not be addressed on appeal. In the alternative, to the extent theexisting record permits review, we find that defendant received effective assistance (seePeople v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466US 668 [1984]). Defendant has not shown that any of counsel's alleged deficiencies with regardto a prior consistent statement by the victim and related matters fell below an objective standardof reasonableness, or that, viewed individually or collectively, they deprived defendant of a fairtrial or affected the outcome of the case (see People v Gross, 26 NY3d 689, 694 [2016]; see also People v Ludwig, 24 NY3d221, 230 [2014]).
The court properly denied defendant's request for new counsel, made just before trial, andrenewed just after trial was under way (see People v Arroyave, 49 NY2d 264, 270-272[1980]). The court conducted an adequate inquiry into defendant's request (see People vSides, 75 NY2d 822, 824 [1990]; see also People v Linares, 2 NY3d 507, 510 [2004]). The recorddoes not demonstrate any serious dispute between defendant and his retained counsel, other thanan issue about payment of fees, which was satisfactorily resolved (see People v Kolon, 37AD3d [*2]340, 341 [1st Dept 2007], lv denied 8 NY3d947 [2007]), and defendant's claim of a conflict is unavailing.
We perceive no basis for reducing the sentence. Concur—Andrias, J.P., Feinman,Gische and Gesmer, JJ.