PEOPLE v. SANTIAGO (2007)

Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered April 4, 2005, convicting defendant, after a jury trial, of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of 5 years, unanimously affirmed.

 The verdict was supported by 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 credibility.   The victim's testimony that defendant demanded money while gesturing with his hand in his waistband, where a silver, shiny object was partially concealed, provided ample proof that defendant displayed what appeared to be a firearm (see People v. Baskerville, 60 N.Y.2d 374, 469 N.Y.S.2d 646, 457 N.E.2d 752 [1983] ).

 Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it turns on a matter outside the record regarding counsel's strategy in choosing not to request submission of third-degree attempted robbery (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] ).   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] ).   Reasonable strategic concerns would support counsel's decision not to request submission of the lesser included offense (see People v. Lane, 60 N.Y.2d 748, 469 N.Y.S.2d 663, 457 N.E.2d 769 [1983] ).   In any event, were we to find that counsel should have made such a request, we would find that her failure to do so did not cause defendant any prejudice.