PEOPLE v. KOONCE (2009)

Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered June 20, 2005, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 10 years, and order, same court and Justice, entered on or about January 8, 2009, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.

The court properly denied defendant's motion to vacate the judgment, made on the ground of ineffective assistance of counsel.   The submissions on the motion, taken together with the trial record, establish that defendant received effective assistance under both 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] ).   Counsel reasonably declined to use recorded conversations between the victim and defendant's cousin for impeachment purposes since aspects of the tape were damaging to defendant and would have opened the door to additional evidence of defendant's guilt (see People v. Alicea, 229 A.D.2d 80, 89, 656 N.Y.S.2d 2 [1997], lv. denied 90 N.Y.2d 890, 662 N.Y.S.2d 433, 685 N.E.2d 214 [1997] ).   Counsel could have reasonably concluded that the disadvantages of using this tape outweighed its impeachment value.   Furthermore, counsel was not obligated to make the same choice as the attorney who represented defendant at his first trial, which ended in a hung jury;  the second attorney could have reasonably concluded that a different tactic was more likely to lead to an acquittal.   In any event, even if counsel should have used the tape, defendant has not shown that counsel's failure to do so affected the outcome.

We perceive no basis for reducing the sentence.