People v. Glover

99 A.D.2d 1012, 474 N.Y.S.2d 1, 1984 N.Y. App. Div. LEXIS 17452

Opinions

Judgment, Supreme Court, Bronx County (Jack Rosenberg, J.), rendered August 4,1981, convicting defendant after a jury trial of manslaughter in the first degree and sentencing him to an indeterminate term of imprisonment of SVa to 25 years, affirmed. H Despite the defendant’s never having suggested during his trial that he was in any way dissatisfied with the representation provided him by his attorney (cf. People v LaBree, 34 NY2d 257) and having raised no objection when his counsel assured the Trial Justice that the conduct of the defense was a calculated strategy of both attorney and client, the defendant now contends on appeal that he was denied the effective assistance of counsel. From the thickness of the record the defendant has culled a list of-claimed inadequacies. They have been adopted by the dissent which finds them “failures of performance” that speak for themselves of counsel’s lack of a coherent strategy. While we do not find that the trial was error free, we cannot agree with this conclusion. H One claimed failure of performance is counsel’s failure to have resubmitted a pretrial omnibus motion that had been denied without prejudice. A rationale for this failure may well lie in the fact that the prosecution supplied most of the discovery requested and counsel may have felt that this adequately informed him of the theory of the prosecution’s case. Another claimed failure of performance is counsel’s failure to have persisted in his efforts to suppress the defendant’s statements to the police which the dissent seems to have found suppressible under Dunaway v New York (442 US 200). Defense counsel may have been aware that Dunaway stated that it did not “ ‘involve a situation where the defendant voluntarily appeared at police headquarters’” (p 205). Defense counsel was certainly aware that his client had voluntarily appeared at the police station. H To assess the remaining claims of failure of performance we must bear in mind that defense counsel knew that there was no proof that his client shot the victim, there was no proof that he was even at the site of the shooting, that the evidence was that, although he was in sight of the shooting, he was in a parked car at the time. Given this knowledge, these seeming failures of performance can be accounted for by a calculated strategy of appearing to minimize the prosecution’s case by a minimum of defense participation, the theory being that, if no lesser included crimes were charged, the jury would never convict the defendant of murder in the second degree on the evidence available. The proof of the strategy is that it partially succeeded. The jury refused to convict the defendant of murder, second degree. The strategy might have fully succeeded had not the trial court charged manslaughter as a lesser included crime over defense counsel’s vehement objection. Such an unorthodox strategy does not constitute ineffective assistance of counsel, even if unsuccessful (People v Jackson, 52 NY2d 1027). K In People v Brown (45 NY2d 852, 853-854), the Court of Appeals said: “Generally, the ineffectiveness of counsel is not demonstrable on the main record * * * Consequently, in the typical case it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or postconviction proceeding brought under GPL 440.10”. In our view, the claimed ineffectiveness of counsel has not been demonstrated from the main record, which is all that we have before us. 11 We find no merit to the defendant’s claim that his sentence was excessive. Concur — Sullivan, J. P., Ross, Silverman and Lynch, JJ.