PEOPLE v. HOWZE (2008)

Judgment, Supreme Court, New York County (A. Kirke Bartley, J.), rendered March 20, 2007, convicting defendant, after a jury trial, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.

 The court properly exercised its discretion in denying defendant's challenge for cause to a prospective juror who had been the victim of property crimes.   The panelist never said anything that would “cast serious doubt on [her] ability to render an impartial verdict” (People v. Arnold, 96 N.Y.2d 358, 363, 729 N.Y.S.2d 51, 753 N.E.2d 846 [2001] ), and, in any event, she then gave the court an unequivocal assurance of her impartiality.   Given the totality of her responses, the panelist's assurance was not rendered equivocal by her use of the phrases “I don't think I could not be impartial,” and “I will do my best” (see People v. Chambers, 97 N.Y.2d 417, 419, 740 N.Y.S.2d 291, 766 N.E.2d 953 [2002] ).

 Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it primarily involves matters outside the record concerning counsel's strategy (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] ).   During the trial, counsel observed some type of interaction between a juror and a witness in the hallway outside the courtroom and called it to the court's attention, but only asked if the court could try to keep jurors and witnesses separated.   On appeal, defendant argues that his trial counsel should have requested an inquiry into the incident, and could not have had a reasonable strategic reason for failing to do so.   We disagree, because counsel may have concluded that the incident was innocuous and that an inquiry could have led to, for example, embarrassing, antagonizing or even disqualifying a juror counsel may have viewed as favorable to the defense.   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 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] ).