People v. Castricone

239 A.D.2d 929, 661 N.Y.S.2d 802, 1997 N.Y. App. Div. LEXIS 6305

Opinion

Judgment unanimously affirmed. Memorandum: There is no merit to the contention of defendant that he was deprived of a fair trial by ineffective assistance of counsel based upon defense counsel’s failure to call certain defense witnesses. Upon remittal (People v Castricone, 224 AD2d 1019), defendant’s trial counsel testified that he and defendant discussed whether to call the witnesses and concluded that the testimony would have been severely undermined on cross-examination and would have been detrimental to the defense. Trial counsel also testified that the decision was not made by counsel unilaterally but was made by defendant after a lengthy discussion with counsel. We conclude that defendant failed to "demonstrate the absence of strategic or other legitimate explanations for counsel’s failure to pursue 'colorable’ claims” (People v Garcia, 75 NY2d 973, 974; see, People v Thompson, 69 NY2d 661, 662-663; People v Baldi, 54 NY2d 137, 146-147).

We have reviewed defendant’s remaining contention and conclude that it is without merit. (Resubmission of Appeal from Judgment of Supreme Court, Erie County, Wolfgang, J.— Robbery, 1st Degree.) Present—Green, J. P., Pine, Callahan, Boehm and Fallon, JJ.