PEOPLE v. IGLESIAS (2008)

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered October 5, 2006, convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him, as a second felony offender, to a term of 5 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   There is no basis for disturbing the jury's determinations concerning identification.   Each of the two identifying witnesses had an extensive opportunity to observe defendant at the time of the crime.

 Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it involves matters outside the record concerning counsel's strategic decisions (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] ).   Defense counsel's decision to permit introduction of testimony concerning photographic identifications appears to have been part of a legitimate strategy aimed at establishing that the identification testimony was unreliable and the product of police suggestion (see People v. Pennington, 27 A.D.3d 269, 811 N.Y.S.2d 36 [2006], lv. denied 6 N.Y.3d 897, 817 N.Y.S.2d 632, 850 N.E.2d 679 [2006];  People v. Silvestre, 279 A.D.2d 364, 365, 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] ).   Although counsel inadvertently elicited a detective's belief that defendant had a prior arrest for robbery, the court minimized any prejudice by immediately striking that response.