People v. Mapp

393 N.E.2d 1020, 47 N.Y.2d 939, 419 N.Y.S.2d 947, 1979 N.Y. LEXIS 2193

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We conclude that the evidence in this case was not such as to entitle defendant to a charge with respect to either the agency defense or the affirmative defense of entrapment. Accordingly it was not error for the trial court to deny defense counsel’s requests for such charges.

Nor is there substance to defendant’s claim that he was denied effective assistance of counsel in consequence of what he characterizes as a failure "to tender a meaningful summation in his behalf’. Faced with overwhelming proof of defendant’s guilt, including his own trial testimony admitting participation in the transaction on which the charge was based, counsel’s strategy had been predicated on the defenses of agency and entrapment. When the trial court ruled out these defenses as a matter of law, defense counsel was placed in a most difficult position — a "dilemma”, as defendant concedes. That counsel then chose in a forthright though brief statement to submit his client to the mercy and fair-mindedness of the jury does not warrant a finding that defendant was denied his right to effective assistance of counsel.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur; Judge Fuchsberg taking no part.

Order affirmed in a memorandum.