Opinion
2013-05-16
The PEOPLE of the State of New York, Respondent, v. Lateef THOMPSON, Defendant–Appellant.
Flamhaft Levy Hirsch & Rendeiro LLP, Brooklyn (Jeffrey A. Rabin of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), for respondent.
Flamhaft Levy Hirsch & Rendeiro LLP, Brooklyn (Jeffrey A. Rabin of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), for respondent.
MAZZARELLI, J.P., SAXE, MOSKOWITZ, MANZANET–DANIELS, JJ.
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered May 4, 2012, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree, and sentencing him to a term of five years, unanimously affirmed.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or not fully explained by, the trial record ( 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] ). On the existing record, to the extent it permits review, we find that defendant received effective assistance under the state and federal standards ( see People v. Taylor, 1 N.Y.3d 174, 175–176, 770 N.Y.S.2d 711, 802 N.E.2d 1109 [2003];People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).
Defendant asserts that his trial counsel's failure to object to certain lines of questioning during the prosecutor's cross-examination of defense witnesses rendered his representation ineffective. However, counsel unsuccessfully objected to these lines of questioning when he opposed an in limine motion made by the People. Counsel may have reasonably believed that making the same arguments again during cross-examination would have been futile or counterproductive ( see People v. Cortez, 85 A.D.3d 409, 410, 923 N.Y.S.2d 544 [1st Dept. 2011], lv. denied19 N.Y.3d 972, 950 N.Y.S.2d 355, 973 N.E.2d 765 [2012] ). In any event, we conclude that counsel's failure to object to portions of the prosecutor's cross-examination and summation, and to the court's charge, met an “objective standard of reasonableness” ( Strickland, 466 U.S. at 688, 104 S.Ct. 2052), and that defendant has not shown that these omissions affected the outcome of the case or deprived him of a fair trial.
Furthermore, the court properly exercised its discretion when it permitted the People to elicit evidence of the gang and drug activity of defendant's deceased cousin, who had been a homicide victim. The People made a sufficient showing that this evidence was relevant under the particular facts of the case, and that they had a good faith basis for this inquiry.
The portions of the prosecutor's summation to which defense counsel did object were responsive to defense arguments and drew appropriate inferences from the evidence ( see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv. denied91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ). To the extent there were any improprieties, we conclude that they were not so egregious as to deprive defendant of a fair trial ( see People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv. denied81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).
Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal.