People v. Brito

Appellate Division of the Supreme Court of New York

People v. Brito

304 A.D.2d 320, 758 N.Y.S.2d 23, 2003 N.Y. App. Div. LEXIS 3422

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 1, 2003

StatusPublished

Cited by4 cases

This text of 304 A.D.2d 320 (People v. Brito) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Brito, 304 A.D.2d 320, 758 N.Y.S.2d 23, 2003 N.Y. App. Div. LEXIS 3422 (N.Y. Ct. App. 2003).

Pincite

Opinion

Judgment, Supreme Court, Bronx County (Robert Seewald, J.), rendered December 4, 2000, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and imposing sentence, as a second felony offender, of concurrent terms of 23 years to life and 15 years, respectively, unanimously affirmed.

The decision of defendant’s trial counsel, after having defended defendant during the trial on a theory of misidentification, to request a justification charge and to argue in summation that defendant had been misidentified but that “whoever * * * stabbed [the victim] was justified,” did not constitute [321]*321ineffective assistance of counsel. While the defenses may have been inconsistent, the submission of inconsistent defenses to the jury is permissible where warranted by the evidence (People v Steele, 26 NY2d 526, 529 [1970]; People v Garay, 128 AD2d 413 [1987]). We cannot say that the tactic of offering the jury an alternative theory to acquit defendant, although risky and ultimately unavailing, did not reflect, under the circumstances of this case, a reasonable and legitimate strategy (see People v Benevento, 91 NY2d 708, 713-714 [1998]). Concur — Nardelli, J.P., Sullivan, Friedman, Marlow and Gonzalez, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Judgment, Supreme Court, Bronx County (Robert Seewald, J.), rendered December 4, 2000, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and imposing sentence, as a second felony offender, of concurrent terms of 23 years to life and 15 years, respectively, unanimously affirmed.

The decision of defendant’s trial counsel, after having defended defendant during the trial on a theory of misidentification, to request a justification charge and to argue in summation that defendant had been misidentified but that “whoever * * * stabbed [the victim] was justified,” did not constitute [321]*321ineffective assistance of counsel. While the defenses may have been inconsistent, the submission of inconsistent defenses to the jury is permissible where warranted by the evidence (People v Steele, 26 NY2d 526, 529 [1970]; People v Garay, 128 AD2d 413 [1987]). We cannot say that the tactic of offering the jury an alternative theory to acquit defendant, although risky and ultimately unavailing, did not reflect, under the circumstances of this case, a reasonable and legitimate strategy (see People v Benevento, 91 NY2d 708, 713-714 [1998]). Concur — Nardelli, J.P., Sullivan, Friedman, Marlow and Gonzalez, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

304 A.D.2d 320, 758 N.Y.S.2d 23, 2003 N.Y. App. Div. LEXIS 3422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-brito-nyappdiv-2003.

Opinion

Related

Cite This Page — Counsel Stack