Opinion
2876, 2876A.
Decided March 16, 2004.
Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), rendered May 2, 2002, convicting defendant, after a jury trial, of four counts of criminal contempt in the first degree, and sentencing him, as a second felony offender, to an aggregate term of 4 to 8 years, and order, same court and Justice, entered on or about June 19, 2002, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment, unanimously affirmed.
T. Charles Won, for Respondent.
Jody Ratner, Defendant-Appellant.
Before: Nardelli, J.P., Saxe, Lerner, Marlow, JJ.
The court properly exercised its discretion in denying defendant's mistrial motion, made on the ground that the prosecutor had violated the trial court's Sandoval ( People v. Sandoval, 34 N.Y.2d 371) ruling. Defendant's direct testimony tended to assert his innocence as to his prior criminal contempt conviction, and thus opened the door to cross-examination concerning the facts leading up to that conviction ( see People v. Fardan, 82 N.Y.2d 638, 646). The scope of cross-examination was consistent with the court's specific warning to defendant, given at the end of the Sandoval proceeding, concerning the circumstances under which the court might modify its original ruling, and the effect of such a modification.
The court correctly denied defendant's motion to vacate judgment alleging ineffective assistance of counsel. The court properly found that the trial record was sufficient to permit review of this issue on direct appeal ( see CPL 440.10[b]). We note that the circumstances of trial counsel's decision not to call certain witnesses are adequately developed on the record. Upon our review of the entire trial record, we conclude that counsel provided effective assistance ( see People v. Benevento, 91 N.Y.2d 708, 713-714; see also Strickland v. Washington, 466 U.S. 668).
Defendant's remaining contentions, including his argument that certain conduct by the prosecutor violated the State Constitution, are unpreserved ( see People v. Robinson, 74 N.Y.2d 773, 775, cert denied 493 U.S. 966; People v. Hamlin, 71 N.Y.2d 750, 762), 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.