PEOPLE v. NUNEZ (2022)

Judgment, Supreme Court, New York County (Curtis Farber, J. at severance motion;  Ruth Pickholz, J. at jury trial and sentencing), rendered March 1, 2019, convicting defendant of robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of eight years, unanimously affirmed.

The court providently exercised its discretion in denying defendant's motion for severance of his trial from that of his codefendant.  As presented at trial, the codefendant's theory that he was misidentified and defendant's theory that there was no robbery at all were not mutually exclusive, but rather “were compatible and neither defendant implicated the other” (People v. Funches, 4 A.D.3d 206, 207, 772 N.Y.S.2d 62 [1st Dept. 2004], lv denied 3 N.Y.3d 640, 782 N.Y.S.2d 411, 816 N.E.2d 201 [2004]).  The codefendant's counsel never conceded that a robbery, as opposed to an alleged robbery, actually occurred.  On the contrary, the codefendant's counsel argued in summation that in addition to his client not even being present, the complainant was lying about the incident having been a robbery to begin with.  This argument echoed defendant's own defense rather than contradicting it.

Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters of strategy not reflected in, or fully explained by, the record (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]).  Accordingly, because defendant has not made a CPL 440.10 motion, 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]).