PEOPLE v. HENRIQUES (2026)

Judgment, Supreme Court, New York County (Felicia Menin, J., at CPL 190.50 motion; Abraham L. Clott, J., at trial and sentencing), rendered July 18, 2023, convicting defendant of assault in the first degree, and two counts of assault in the second degree, and sentencing him to an aggregate term of 25 years, unanimously affirmed.

Defendant was not deprived of his right under CPL 190.50 to testify at the grand jury. Although the prosecutor had the grand jury vote on one count before defendant was afforded a reasonable opportunity to testify (see People v. Evans, 79 N.Y.2d 407, 413 [1992]), the prosecutor twice offered to present the case before a new grand jury so that defendant could testify and took a vote on the remaining counts after defendant had declined to testify before the grand jury (see People v. Watkins, 40 AD3d 290–290–291 [1st Dept 2007], lv denied 9 NY3d 870 [2007]; People v. Bethea, 159 A.D.2d 384, 384 [1st Dept 1990], lv denied 76 N.Y.2d 785 [1990]).

Defendant affirmatively waived his challenge to the court's responses to two notes regarding “what happens” if the jurors cannot agree unanimously regarding one or more counts when counsel explicitly approved of the instructions before they were given and made no objection afterward (see People v. Kadarko, 56 AD3d 102, 107 [1st Dept 2008], revd on other grounds 14 NY3d 426 [2010]). We reject defendant's requests to reach the issue in the interest of justice. In the alternative, we find that the court's instructions were not coercive (see People v. Morgan, 28 NY3d 516, 522 [2016]) and did not suggest that the jurors could not cease deliberating until they reached unanimous agreement on every count.

Defendant's claim that his counsel rendered ineffective assistance by failing to preserve this issue is unreviewable because it involves matters of strategy not reflected in, or fully explained by, the record (see People v. Palaguachi, 119 AD3d 447, 448 [1st Dept 2014], lv denied 24 NY3d 1004 [2014]). 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 [1998]; Strickland v. Washington, 466 U.S. 668 [1984]).

We perceive no basis for reducing defendant's sentence.