| People v Cambronae |
| 2020 NY Slip Op 01253 [180 AD3d 557] |
| February 20, 2020 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Katia Cambronae, Appellant. |
Janet E. Sabel, The Legal Aid Society, New York (Will A. Page of counsel), forappellant.
Darcel D. Clark, District Attorney, Bronx (Waleska Suero Garcia of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Joseph J. Dawson, J.), rendered March 26,2015, convicting defendant, after a jury trial, of assault in the second degree, andsentencing her to five years' probation, unanimously affirmed.
Defendant's claim that her counsel was ineffective for failing to request ajustification charge is unreviewable on direct appeal, because it involves matters ofstrategy not reflected in the record (see e.g. People v Perez, 123 AD3d 592 [1st Dept 2014], lvdenied 25 NY3d 1169 [2015]). Accordingly, since defendant has not made a CPL440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal. Inthe alternative, to the extent the existing record permits review, we find that defendantreceived effective assistance of counsel under the state and federal standards (seePeople v Benevento, 91 NY2d 708 [1998]; Strickland v Washington, 466 US668 [1984]). The record does not establish that trial counsel's choice of defenses wasunreasonable or prejudicial.
The court providently exercised its discretion in denying defendant's belated requestto testify, made for the first time late in jury deliberations (see People v Olsen, 34NY2d 349, 353-354 [1974]). The court was not obligated to appoint a new attorney torepresent defendant in connection with that request. Defendant asserted that her counselhad "made the decision," against her wishes, that she would not testify. However,counsel clarified that what actually happened was that he dissuaded defendant fromtestifying (see People v Perry, 266 AD2d 151, 151-152 [1st Dept 1999], lvdenied 95 NY2d 856 [2000]), and that defendant had agreed with counsel's advice.This clarification did not create a conflict of interest requiring the court to appoint newcounsel on the application to testify (see e.g. People v Nelson, 27 AD3d 287 [1st Dept 2006],affd 7 NY3d 883 [2006]).
We have considered and rejected defendant's remaining claims.Concur—Gische, J.P., Webber, Oing, Singh, JJ.