PEOPLE v. PENNINGTON (2006)

Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered May 3, 2002, convicting defendant, after a jury trial, of two counts of kidnapping in the first degree, and sentencing him to concurrent terms of 20 years to life, unanimously affirmed.

 Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it involves matters outside the record concerning counsel's strategy, particularly with regard to the claim that counsel improperly opened the door to otherwise inadmissible evidence (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ).   To the extent the existing record permits review, it establishes that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).   Defendant argues that counsel should have moved to preclude certain evidence for lack of statutory notice.   However, we conclude that, within the meaning of the notice statute (CPL 710.30[1][b] ), there was neither a voice identification (see People v. Gee, 99 N.Y.2d 158, 753 N.Y.S.2d 19, 782 N.E.2d 1155 [2002] ) nor a lineup identification (see People v. Trammel, 84 N.Y.2d 584, 620 N.Y.S.2d 754, 644 N.E.2d 1310 [1994] ).   Defendant also faults counsel for opening the door to an otherwise inadmissible photographic identification.   However, we find that counsel was pursuing a legitimate means of impeaching the victim, the advantages of which outweighed the risks involved in permitting the photo identification to be revealed (see People v. Silvestre, 279 A.D.2d 364, 719 N.Y.S.2d 248 [2001], lv. denied 96 N.Y.2d 763, 725 N.Y.S.2d 290, 748 N.E.2d 1086 [2001] ).   In any event, even if we were to find that counsel erred in each of the three respects defendant argues on appeal, we would find that defendant was not prejudiced and that his right to a fair trial was not compromised.