People v. Tjaden

Appellate Division of the Supreme Court of New York

People v. Tjaden

57 A.D.3d 296, 868 N.Y.2d 523

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 11, 2008

StatusPublished

This text of 57 A.D.3d 296 (People v. Tjaden) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. Tjaden, 57 A.D.3d 296, 868 N.Y.2d 523 (N.Y. Ct. App. 2008).

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Opinion

[297]*297The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury’s determinations concerning credibility and identification. Defendant’s guilt was established by eyewitness testimony that was corroborated by circumstantial evidence.

Defendant’s challenges to the court’s charge are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. Viewed as a whole (see People v Samuels, 99 NY2d 20, 25-26 [2002]), the court’s instructions on the intent element of burglary conveyed the appropriate legal standards. Defendant also claims that his attorney was ineffective for failing to object to the alleged deficiencies in the instructions on intent. However, the circumstances of the case suggest the possibility of strategic considerations, not reflected in the record, for the lack of objection, rendering this claim unreviewable on direct appeal (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). On the existing record, to the extent it 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]; see also Strickland v Washington, 466 US 668 [1984]).

We perceive no basis for reducing the sentence. Concur— Friedman, J.E, McGuire, Acosta, DeGrasse and Freedman, JJ.

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[297]*297The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury’s determinations concerning credibility and identification. Defendant’s guilt was established by eyewitness testimony that was corroborated by circumstantial evidence.

Defendant’s challenges to the court’s charge are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. Viewed as a whole (see People v Samuels, 99 NY2d 20, 25-26 [2002]), the court’s instructions on the intent element of burglary conveyed the appropriate legal standards. Defendant also claims that his attorney was ineffective for failing to object to the alleged deficiencies in the instructions on intent. However, the circumstances of the case suggest the possibility of strategic considerations, not reflected in the record, for the lack of objection, rendering this claim unreviewable on direct appeal (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). On the existing record, to the extent it 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]; see also Strickland v Washington, 466 US 668 [1984]).

We perceive no basis for reducing the sentence. Concur— Friedman, J.E, McGuire, Acosta, DeGrasse and Freedman, JJ.

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57 A.D.3d 296, 868 N.Y.2d 523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-tjaden-nyappdiv-2008.

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