People v. Robinson

156 A.D.2d 974, 549 N.Y.S.2d 266, 1989 N.Y. App. Div. LEXIS 16149

Opinion

Judgment unanimously affirmed. Memorandum: On appeal, defendant’s sole contention is that he was denied his constitutional right to effective assistance of counsel because his trial counsel failed to assert an agency defense, and instead, pursued a defense of mistaken identity. The fact that an attorney chooses to rely upon an unsuccessful defense to the exclusion of another available defense does not mean that the attorney’s representation was ineffective (see, People v Lane, 60 NY2d 748; People v Baldi, 54 NY2d 137). Contrary to defendant’s suggestion, trial counsel’s choice was not irrational or unsupportable. On cross-examination, the undercover officer conceded that the descriptions of defendant appearing in his handwritten notes and testified to before the Grand Jury and at a Wade hearing were mistaken. Defense counsel also elicited numerous testimonial inconsistencies from the undercover officer and his informant. Counsel’s summation effectively presented each of these inconsistencies to the jury. In sum, counsel’s choice amounted to a reasonable tactical decision and his over-all representation of defendant at trial was meaningful (see, People v Baldi, supra; People v Cintron, 74 AD2d 457, 463). (Appeal from judgment of Niagara County Court, DiFlorio, J. — criminal sale of controlled substance, third degree.) Present — Boomer, J. P., Green, Pine, Balio and Lawton, JJ.