PEOPLE v. BARNES (1998)

Judgment, Supreme Court, New York County (Franklin Weissberg, J.), rendered June 13, 1995, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 3 to 9 years, unanimously affirmed.

 On the existing record, which defendant has not sought to amplify by way of a CPL 440.10 motion (see, People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486;  People v. Fuentes, 246 A.D.2d 474, 668 N.Y.S.2d 184), we conclude that defendant received effective assistance of counsel (see, People v. Hobot, 84 N.Y.2d 1021, 622 N.Y.S.2d 675, 646 N.E.2d 1102;  People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).   We note counsel's success in securing acquittals on several counts, including the most serious charge, attempted murder.   The record does not demonstrate any prejudice to defendant resulting from his trial counsel's abandonment of the justification aspect of his defense after the court correctly advised counsel of the weakness of that defense, given defendant's testimony, and of its possible detraction from a stronger defense (see, People v. Copp, 184 A.D.2d 859, 585 N.Y.S.2d 108, lv. denied 80 N.Y.2d 974, 591 N.Y.S.2d 143, 605 N.E.2d 879;  see also, People v. DeGina, 72 N.Y.2d 768, 777, 537 N.Y.S.2d 8, 533 N.E.2d 1037).   Likewise, defendant has shown no prejudice resulting from counsel's failure to make a repugnant verdicts claim prior to the discharge of the jury because a timely objection could have simply resulted in resubmission to the jury and a potentially less favorable verdict (see, People v. Salemmo, 38 N.Y.2d 357, 379 N.Y.S.2d 809, 342 N.E.2d 579).   We decline to review the repugnant verdicts claim in the interest of justice.

MEMORANDUM DECISION.