| People v Perez |
| 2018 NY Slip Op 04825 [162 AD3d 588] |
| June 28, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Christian Perez, Appellant. |
Stanley Neustadter, Cardozo Appeals Clinic, New York (Bobbi C. Sternheim of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jonathon Krois of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), renderedSeptember 25, 2013, convicting defendant, after a jury trial, of attempted murder in the seconddegree and two counts of criminal possession of a weapon in the second degree, and sentencinghim to an aggregate term of 21 years, unanimously affirmed.
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 under thestate and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998];Strickland v Washington, 466 US 668 [1984]). Defendant has not shown that counsel'schoices not to make either an opening statement or a request for a missing witness charge fellbelow an objective standard of reasonableness, or that, viewed individually or collectively, theydeprived defendant of a fair trial or had a reasonable probability of affecting the outcome of thecase.
Defendant failed to preserve his challenges to the court's conduct of the trial (see People vCharleston, 56 NY2d 886, 887-888 [1982]), and we decline to review them in the interest ofjustice. As an alternative holding, we find no basis for reversal. The isolated remarks andquestions challenged by defendant on appeal did not deprive him of a fair trial.Concur—Acosta, P.J., Sweeny, Webber, Kahn, Oing, JJ.