Opinion
1583
September 16, 2003.
Judgment, Supreme Court, New York County (Leslie Crocker Snyder, J.), rendered February 29, 2000, convicting defendant, after a jury trial, of murder in the second degree, conspiracy in the second degree, criminal possession of a controlled substance in the second degree (two counts), criminal possession of a controlled substance in the third degree, and criminal possession of a weapon in the third degree, and sentencing him to an aggregate term of 50 years to life, unanimously affirmed.
Michael S. Morgan, for respondent.
Sara Goldman, for defendant-appellant.
Before: Ellerin, J.P., Williams, Lerner, Friedman, Gonzalez, JJ.
The court properly exercised its discretion when it denied defendant's mistrial motion made after the deliberating jury indicated that it was deadlocked, and instead delivered an Allen charge ( Allen v. United States, 164 U.S. 492). Defendant's challenge to the language of the Allen charge is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the charge given was not coercive or unbalanced ( see People v. Alvarez, 86 N.Y.2d 761).
Defendant's argument concerning the court's handling of certain events that transpired during jury deliberations is similar to an argument rejected by this Court on a codefendant's appeal ( People v. Cochran, 302 A.D.2d 276, lv denied 99 N.Y.2d 653), and there is no reason to reach a different determination.
The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, which are supported by the record ( see People v. Prochilo, 41 N.Y.2d 759, 761).
Defendant's ineffective assistance of counsel claims would require a CPL 440.10 motion so as to expand the record as to counsel's strategic decisions. To the extent the present record permits review, we find that defendant was provided with meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 713-714). Counsel's concessions in summation, that certain officers had no reason to lie and that proof beyond a reasonable doubt might well exist for certain lesser crimes, can be explained as a legitimate strategy in which counsel sought to have the jury view him as candid and credit him when he argued that other witnesses to more serious crimes were not credible and had motives to lie, and that no proof beyond a reasonable doubt existed with regard to these greater crimes ( see People v. Edwards, 265 A.D.2d 220, lv denied 94 N.Y.2d 945; see also People v. Morris, 100 A.D.2d 630, 631, affd 64 N.Y.2d 803).
Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.