Opinion
March 2, 1995
Appeal from the Supreme Court, Bronx County (Vincent Vitale, J.).
After reviewing the trial record we cannot say that the defense theory, that defendant was the innocent victim of overzealous police action, was ineffective, or that defendant's attorney failed to provide meaningful representation sufficient to satisfy the constitutional requirement (People v. Baldi, 54 N.Y.2d 137, 147; People v. Jackson, 52 N.Y.2d 1027, 1029). The foregoing determination is made without the benefit of knowing what was in defense counsel's mind, a point which may have been developed had an appropriate post-judgment motion been made pursuant to CPL 440.10 (People v. Jones, 55 N.Y.2d 771, 773).
To the extent that defense counsel's opening statement may have suggested that defendant had the burden of proof to demonstrate his innocence, any prejudice caused thereby was eliminated by the court's subsequent instructions regarding the burden of proof.
Concur — Wallach, J.P., Rubin, Asch, Nardelli and Tom, JJ.