Opinion
05-11-2017
The PEOPLE of the State of New York, Respondent, v. Ronald DeJESUS–PLAZA, Defendant–Appellant.
Rothstein Law PLLC, New York (Eric E. Rothstein of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Lori Ann Farrington of counsel), for respondent.
Rothstein Law PLLC, New York (Eric E. Rothstein of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Lori Ann Farrington of counsel), for respondent.
FRIEDMAN, J.P., MOSKOWITZ, MANZANET–DANIELS, KAPNICK, WEBBER, JJ.
Judgment, Supreme Court, Bronx County (Efrain Alvarado, J.), rendered January 20, 2016, as amended July 25, 2016, convicting defendant, after a jury trial, of assault in the first degree (two counts) and assault in the third degree, and sentencing him to an aggregate term of 10 years, unanimously affirmed.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). Defendant has not shown that any of counsel's alleged deficiencies fell below an objective standard of reasonableness, or that, viewed individually or collectively, they deprived defendant of a fair trial or affected the outcome of the case. In particular, counsel's deliberate elicitation, in an effort to discredit the police investigation, of evidence that would otherwise be inadmissible was both objectively reasonable and nonprejudicial (see e.g. People v. Steel, 207 A.D.2d 744, 744–745, 616 N.Y.S.2d 623 [1st Dept.1994], lv. denied 84 N.Y.2d 1039, 623 N.Y.S.2d 195, 647 N.E.2d 467 [1995] ). Similarly, to the extent the record permits review, we reject defendant's claim that counsel rendered ineffective assistance by failing to preserve certain issues, and we do not find that any lack of preservation may be excused on the ground of ineffective assistance. The court properly completed the trial in defendant's absence, after conducting a sufficient inquiry to determine that the absence was deliberate and that defendant thus forfeited his right to be present at trial (see People v. Redzeposki, 7 N.Y.3d 725, 818 N.Y.S.2d 182, 850 N.E.2d 1157 [2006] ; People v. Mejia, 268 A.D.2d 286, 700 N.Y.S.2d 703 [1st Dept.2000], lv. denied 95 N.Y.2d 837, 713 N.Y.S.2d 144, 735 N.E.2d 424 [2000] ). Defendant, who had been attending the trial, failed to appear on the day that the court was scheduled to charge the jury. There was no reason to believe defendant's absence had resulted from some event beyond his control, and his family believed that he had gone to see his son in Pennsylvania. Furthermore, defendant's continued failure to appear confirmed the deliberate nature of his absence.
Defendant did not preserve his challenges to the prosecutor's summation and to the court's response to a jury note, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal.
We perceive no basis for reducing the sentence.