People v. Robinson

272 A.D.2d 130, 708 N.Y.S.2d 371, 2000 N.Y. App. Div. LEXIS 5381

Opinion

—Judgment, Supreme Court, New York County (Felice Shea, J.), rendered August 8, 1997, convicting defendant, after a jury trial, of sodomy in the first degree and assault in the first and third degrees, and sentencing him to concurrent terms of 71/2 to 15 years, 3V2 to 7 years and 1 year, respectively, unanimously affirmed.

Defendant’s claim that defense counsel was ineffective for failing to secure a witness’s attendance by compulsion involves a tactical decision by counsel that would require a CPL 440.10 motion in order to further develop the record (see, People v Brown, 45 NY2d 852). Furthermore, the record does not establish that the testimony of the uncalled witness would have been helpful to the defense. We note that the prosecutor had intended to call this witness and had anticipated that his testimony would have been largely corroborative of the complainant’s testimony. Based on the existing record, we conclude that defendant received meaningful representation (see, People v Benevento, 91 NY2d 708, 713-714; People v Hobot, 84 NY2d 1021, 1024).

The court properly denied defendant’s request for a continuance to allow him a further opportunity to secure the attendance of this witness. Defendant had already been granted time to attempt to bring in the witness, who had proven to be uncooperative, and the likelihood that the witness would appear and give exculpatory testimony was speculative (see, People v Covington, 233 AD2d 169, lv denied 89 NY2d 941). Concur — Williams, J. P., Wallach, Lerner, Andrias and Saxe, JJ.