PEOPLE v. HENDERSON

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Jerome HENDERSON, Defendant-Appellant.

Decided: October 21, 2004

TOM, J.P., SULLIVAN, WILLIAMS, LERNER, SWEENY, JJ. James Froccaro, Port Washington, for appellant. Robert M. Morgenthau, District Attorney, New York (Beth Beller of counsel), for respondent.

Judgment, Supreme Court, New York County (Felice Shea, J.), rendered July 2, 1999, convicting defendant, after a jury trial, of burglary in the first degree (five counts), criminal possession of a weapon in the second degree (two counts), criminal use of a firearm in the first degree (two counts) and assault in the first degree (three counts), and sentencing him, as a second violent felony offender, to an aggregate term of 20 years, unanimously affirmed.

 Defendant's challenge to the sufficiency of the evidence supporting his burglary convictions is unpreserved (People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the unlawful entry element of burglary was satisfied by evidence warranting a reasonable inference that the third-floor hallway where the attack on the victim took place was not open to the public (see People v. Rodriguez, 159 A.D.2d 201, 552 N.Y.S.2d 13 [1990], lv. denied 76 N.Y.2d 742, 558 N.Y.S.2d 904, 557 N.E.2d 1200 [1990] ).

 Defendant's claims that his trial counsel rendered ineffective assistance because of an alleged conflict of interest, and that the court was required to conduct a Gomberg inquiry (People v. Gomberg, 38 N.Y.2d 307, 379 N.Y.S.2d 769, 342 N.E.2d 550 [1975] ), are not reviewable on the present record and would require a CPL 440.10 motion (see People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982];  People v. Petrie, 3 A.D.3d 665, 666-667, 771 N.Y.S.2d 242 [2004] ).   Prior to defendant's trial, a codefendant pleaded guilty and was sentenced while being represented by separate counsel from defendant.   Although defendant's trial counsel represented the codefendant on his appeal to this Court, the existing record does not establish whether, at the time of defendant's trial, there was any actual or contemplated representation of the codefendant by defendant's attorney.   Furthermore, there is no evidence to support defendant's claim that the alleged conflict affected any of his trial attorney's strategic decisions, including those relating to the possible testimony of the codefendant.   To the extent that the present record permits review, it establishes that even if a conflict existed, it did not operate to defendant's detriment or have a substantial relation to the conduct of the defense (see People v. Singleton, 3 A.D.3d 408, 771 N.Y.S.2d 106 [2004], lv. denied 2 N.Y.3d 746, 778 N.Y.S.2d 471, 810 N.E.2d 924 [2004];  see also Cuyler v. Sullivan, 446 U.S. 335, 348-350, 100 S.Ct. 1708, 64 L.Ed.2d 333 [1980] ). We note that the codefendant's plea allocution implicating himself and defendant in these crimes rendered him highly undesirable as a potential defense witness.   We have considered and rejected defendant's remaining arguments concerning the issue of ineffective assistance.

 The court properly denied defendant's request for a missing witness charge with respect an unnamed 911 caller.   The request was untimely and it did not meet any of the requirements for a missing witness charge (see People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796, 502 N.E.2d 583 [1986] ).