PEOPLE v. HENDRIX (2004)

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered January 14, 2003, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of 7 years, unanimously affirmed.

 Since defendant's ineffective assistance of counsel claim turns on matters that are not reflected in the record, including his communications with his trial counsel and counsel's trial preparation and strategy, it would require a further record to be developed 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).   To the extent the existing record permits review, it establishes that defendant received effective assistance (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584;  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674).   Counsel's alleged failure to make a timely investigation of a collateral matter involving defendant's family background could not have deprived defendant of a fair trial (see People v. Hobot, 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102).

 The court's justification charge was appropriate in light of the trial evidence, which established that defendant either used deadly physical force or no force at all (see People v. Mickens, 219 A.D.2d 543, 631 N.Y.S.2d 687, lv. denied 87 N.Y.2d 904, 641 N.Y.S.2d 234, 663 N.E.2d 1264).

Defendant's other challenges to the court's charge and his challenge to the People's summation are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.