Opinion
No. 491.
March 13, 2007.
Judgment, Supreme Court, New York County (William A. Wetzel, J), rendered April 4, 2005, convicting defendant, after a jury trial, of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of five years, unanimously affirmed.
Michael E. Lipson, Garden City, for appellant.
Robert M. Morgenthau, District Attorney, New York (Jessica Criag-Trauner of counsel), for respondent.
Before: Mazzarelli, J.P., Marlow, Buckley, Sweeny and Kavanagh, JJ.
The verdict was supported by legally sufficient evidence and was not against the weight of the evidence ( see People v Bleakley, 69 NY2d 490). There is no basis for disturbing the jury's determinations concerning credibility. The victim's testimony that defendant demanded money while gesturing with his hand in his waistband, where a silver, shiny object was partially concealed, provided ample proof that defendant displayed what appeared to be a firearm ( see People v Baskerville, 60 NY2d 374).
Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it turns on a matter outside the record regarding counsel's strategy in choosing not to request submission of third-degree attempted robbery ( see People v Rivera, 71 NY2d 705, 709; People v Love, 57 NY2d 998). 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 Benevento, 91 NY2d 708, 713-714; see also Strickland v Washington, 466 US 668). Reasonable strategic concerns would support counsel's decision not to request submission of the lesser included offense ( see People v Lane, 60 NY2d 748). In any event, were we to find that counsel should have made such a request, we would find that her failure to do so did not cause defendant any prejudice.