People v. Khramtsov

118 A.D.3d 584, 987 N.Y.S.2d 163

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 2014
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered April 28, 2011, convicting defendant, after a jury trial, of criminal mischief in the second degree, and sentencing him, as a second felony offender, to a term of 21h to 5 years, unanimously affirmed.

Defendant’s ineffective assistance of counsel claim is unreviewable on direct appeal because it involves matters of strategy regarding the selection of witnesses that are not reflected in, or fully explained by, the record (see People v Rivera, 71 NY2d 705, 709 [1988]). At most, the record suggests that defense counsel had considered calling a particular medical witness, but it does not explain why that witness, or other potential witnesses cited by defendant on appeal, were not called. Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]).

Concur—Tom, J.R, Moskowitz, DeGrasse, Manzanet-Daniels and Clark, JJ.