PEOPLE v. CAMBRONAE (2020)

Judgment, Supreme Court, Bronx County (Joseph J. Dawson, J.), rendered March 26, 2015, convicting defendant, after a jury trial, of assault in the second degree, and sentencing her to five years' probation, unanimously affirmed.

Defendant's claim that her counsel was ineffective for failing to request a justification charge is unreviewable on direct appeal, because it involves matters of strategy not reflected in the record (see e.g. People v. Perez, 123 A.D.3d 592, 999 N.Y.S.2d 56 [1st Dept. 2014], lv denied 25 N.Y.3d 1169, 15 N.Y.S.3d 301, 36 N.E.3d 104 [2015]). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance of counsel under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 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]). The record does not establish that trial counsel's choice of defenses was unreasonable or prejudicial.

The court providently exercised its discretion in denying defendant's belated request to testify, made for the first time late in jury deliberations (see People v. Olsen, 34 N.Y.2d 349, 353–354, 357 N.Y.S.2d 487, 313 N.E.2d 782 [1974]). The court was not obligated to appoint a new attorney to represent defendant in connection with that request. Defendant asserted that her counsel had “made the decision,” against her wishes, that she would not testify. However, counsel clarified that what actually happened was that he dissuaded defendant from testifying (see People v. Perry, 266 A.D.2d 151, 151–152, 700 N.Y.S.2d 107 [1st Dept 1999], lv denied 95 N.Y.2d 856, 714 N.Y.S.2d 7, 736 N.E.2d 868 [2000]), and that defendant had agreed with counsel's advice. This clarification did not create a conflict of interest requiring the court to appoint new counsel on the application to testify (see e.g. People v. Nelson, 27 A.D.3d 287, 811 N.Y.S.2d 65 [1st Dept. 2006], affd 7 N.Y.3d 883, 826 N.Y.S.2d 593, 860 N.E.2d 56 [2006]).

We have considered and rejected defendant's remaining claims.