PEOPLE v. FABIAN (1997)

Judgment, Supreme Court, Bronx County (Edward Davidowitz, J., on consolidation motion;  Gerald Sheindlin, J., at jury trial and sentence), rendered November 22, 1994, convicting defendant of murder in the second degree, two counts of criminal possession of a weapon in the second degree, and four counts of reckless endangerment in the first degree, and sentencing him to terms of 25 years to life, two concurrent terms of 5 to 15 years, and four concurrent terms of 2 1/313 to 7 years, respectively, for an aggregate term of 32 1/313 years to life, unanimously affirmed.

 The trial court properly granted the People's motion for a joint trial since defendant failed to demonstrate specifically the codefendant's willingness to testify at a separate trial, the nature of her testimony, and that such testimony would tend to exculpate defendant (People v. Bornholdt, 33 N.Y.2d 75, 87, 350 N.Y.S.2d 369, 305 N.E.2d 461, cert denied sub nom. Victory v. New York, 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109).   The statement made by the codefendant did not establish an alibi defense for defendant.

 The record fails to support defendant's claim that he was denied effective assistance of counsel.   Trial counsel's alleged failure to call one defense witness was well-advised, inasmuch as his testimony was detrimental to defendant's claim of misidentification.   Further, defendant was not prejudiced by the unavailability of the other potential witness, whose testimony, of limited value, was the subject of a stipulation.   Moreover, defendant's insistence at the end of trial that his defense be one solely of misidentification negates his present claim that counsel erred in failing to argue the defense of justification as well.   Thus, “the evidence, the law and the circumstances ․ viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.