Opinion
2012-06-12
The PEOPLE of the State of New York, Respondent, v. Fatima CROWDER, Defendant–Appellant.
Rosenbaum & Rosenbaum, P.C., New York (George David Rosenbaum of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), for respondent.
Rosenbaum & Rosenbaum, P.C., New York (George David Rosenbaum of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), for respondent.
TOM, J.P., MAZZARELLI, MOSKOWITZ, RENWICK, ABDUS–SALAAM, JJ.
Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered March 23, 2011, convicting defendant, after a jury trial, of attempted gang assault in the first degree and assault in the second degree, and sentencing her to an aggregate term of 3 1/2 years, unanimously affirmed.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters outside the record concerning trial strategy and potential testimony ( 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] ). While defendant points out that her trial attorney was in no position to make a CPL 440.10 motion attacking his own performance, there is no requirement that a defendant be represented in postconviction proceedings by the same attorney who represented the defendant at trial.
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] ). There were reasonable explanations for trial counsel's decision not to call as witnesses three codefendants who had been convicted prior to defendant's trial ( see People v. Smith, 82 N.Y.2d 731, 733, 602 N.Y.S.2d 322, 621 N.E.2d 689 [1993];People v. Pedraza, 56 A.D.3d 390, 391, 868 N.Y.S.2d 186 [2008],lv. denied12 N.Y.3d 761, 876 N.Y.S.2d 712, 904 N.E.2d 849 [2009] ). In any event, defendant has not shown that she was prejudiced by this decision. The record does not establish that any of the codefendants “would have actually testified, that they would have given exculpatory testimony, or that the jury would have been likely to credit such testimony” ( People v. Green, 27 A.D.3d 231, 233, 810 N.Y.S.2d 188 [2006],lv. denied6 N.Y.3d 894, 817 N.Y.S.2d 629, 850 N.E.2d 676 [2006] ).
There is no merit to defendant's claim that counsel was ineffective for failing to request a missing witness charge regarding the prosecutor's failure to call the codefendants to testify for the People. Defendant would not have been entitled to such a charge, because these witnesses were not in the People's control for missing witness purposes. Former codefendants would not “naturally be expected to provide” testimony favorable to the People ( see People v. Kitching, 78 N.Y.2d 532, 536, 577 N.Y.S.2d 231, 583 N.E.2d 944 [1991] ). Defendant's assertion that the People had originally intended to call the codefendants as witnesses is based on a misreading of the voluntary disclosure form, which sets forth statement and identification evidence to be used against each of the four defendants, individually.