PEOPLE v. COLEMAN

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

The PEOPLE of the State of New York, Respondent, v. Gary COLEMAN, Defendant-Appellant.

Decided: September 26, 2006

BUCKLEY, P.J., SAXE, WILLIAMS, SWEENY, MALONE, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Risa Gerson of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Mary Jo L. Blanchard of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Margaret L. Clancy, J.), rendered September 24, 2004, convicting defendant, after a nonjury trial, of two counts of sodomy in the second degree, four counts of sexual abuse in the second degree and two counts of endangering the welfare of a child, and sentencing him to concurrent terms of 2 1/313 to 7 years on the sodomy convictions and 1 year on each of the other convictions, unanimously affirmed.

The verdict was not against the weight of the evidence.   There is no basis for disturbing the court's determinations concerning credibility, including its evaluation of inconsistencies in testimony.

 Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters outside the record concerning counsel's choice of cross-examination strategy (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] ).   On the existing record, to the extent it 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];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).   Even if we were to find that counsel should have elicited the fact that the victims and/or their families had taken steps in contemplation of civil litigation arising out of their allegations against defendant, we would find that counsel's failure to raise this issue could not have affected the outcome of the case or deprived defendant of a fair trial (see People v. Caban, 5 N.Y.3d 143, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005];  People v. Hobot, 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102 [1995] ).

We perceive no basis for reducing the sentence.