Opinion
16439 Ind. Nos. 5817/13 2829/15 Case No. 2020-01258
10-13-2022
The PEOPLE of the State of New York, Respondent, v. Ramel ROBINSON, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Alexandra L. Mitter of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Kerry Fulham of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Alexandra L. Mitter of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Kerry Fulham of counsel), for respondent.
Renwick, J.P., Friedman, Singh, Shulman, Higgitt, JJ.
Order, Supreme Court, New York County (Robert M. Mandelbaum, J.), entered on or about September 27, 2019, which denied defendant's CPL 440.10 motion to vacate a judgment rendered April 8, 2016, unanimously affirmed.
The record, as expanded by way of the CPL 440.10 motion, establishes that defendant received effective assistance of counsel under 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] ). The court properly exercised its discretion in denying defendant's CPL 440.10 motion without holding a hearing (see People v. Samandarov, 13 N.Y.3d 433, 439–440, 892 N.Y.S.2d 823, 920 N.E.2d 930 [2009] ).
Defendant claims his counsel was ineffective for failing to request submission of second-degree unlawful imprisonment as a lesser included offense of second-degree kidnapping. On defendant's direct appeal ( 168 A.D.3d 605, 606, 92 N.Y.S.3d 258 [1st Dept. 2019], lv denied 33 N.Y.3d 953, 100 N.Y.S.3d 176, 123 N.E.3d 835 [2019] ), we determined, in an alternative holding based on the trial evidence, that there was no reasonable view of the evidence, viewed most favorably to defendant, that he committed the lesser offense but not the greater offense. After revisiting this issue on this CPL 440.10 appeal, we conclude that trial counsel cannot be faulted for failing to request that instruction (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). Defendant also argues that his counsel was ineffective with regard to his opening statement, his unsuccessful requests for other jury instructions, and related matters. Defendant has not shown that any of these 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. Counsel was faced with overwhelming evidence of defendant's guilt of kidnapping, and generally undisputed facts as reflected in defendant's own testimony. "Counsel may not be expected to create a defense when it does not exist" ( People v. DeFreitas, 213 A.D.2d 96, 101, 630 N.Y.S.2d 755 [2d Dept. 1995], lv denied 86 N.Y.2d 872, 635 N.Y.S.2d 954, 659 N.E.2d 777 [1995] ).