PEOPLE v. ROBINS (2019)

Judgment, Supreme Court, New York County (Abraham L. Clott, J.), rendered February 15, 2017, as amended April 7, 2017, convicting defendant, after a jury trial, of burglary in the third degree (four counts), robbery in the third degree and attempted petit larceny, and sentencing him, as a second felony offender, to an aggregate term of 8 to 16 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of directing that all sentences be served concurrently, and otherwise affirmed.

Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record, with particular regard to counsel's strategic choices (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]).  Although defendant made a CPL 440.10 motion, it was on different grounds from those raised on appeal, and it is not presently before this Court in any event.  Accordingly, the merits of the ineffectiveness claims may not be addressed on appeal.  In the alternative, to the extent the existing record 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]; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]).  Defendant has not shown that any of counsel's alleged deficiencies fell below an objective standard of reasonableness, or that, viewed individually or collectively, they deprived defendant of a fair trial or affected the outcome of the case.  There is nothing to indicate that the strategy proposed by defendant on appeal had any greater chance of success than the strategy actually employed by trial counsel (see People v. Mendoza, 33 N.Y.3d 414, 104 N.Y.S.3d 38, 128 N.E.3d 165 [2019]; People v. Zayas, 89 A.D.3d 610, 611, 933 N.Y.S.2d 263 [1st Dept. 2011], lv. denied 18 N.Y.3d 964, 944 N.Y.S.2d 492, 967 N.E.2d 717 [2012]).

The court provided a meaningful response to a jury note (see People v. Malloy, 55 N.Y.2d 296, 302, 449 N.Y.S.2d 168, 434 N.E.2d 237 [1982], cert denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93 [1982]).  Defendant was not prejudiced when the court elaborated on its single-word answer to the jury's question by rereading a statutory definition that had been included in the main charge (see People v. Lourido, 70 N.Y.2d 428, 435, 522 N.Y.S.2d 98, 516 N.E.2d 1212 [1987]).

We find the sentence excessive to the extent indicated.