PEOPLE v. ROSARIO

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

The PEOPLE of the State of New York, Respondent, v. Marcos ROSARIO, Defendant-Appellant.

Decided: March 24, 1998

Before SULLIVAN, J.P., and MILONAS, ROSENBERGER and TOM, JJ. Mary C. Farrington, for Respondent. Allen Fallek, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Alvin Schlesinger, J.), rendered March 17, 1995, convicting defendant, after a jury trial, of murder in the second degree, assault in the first degree and criminal possession of a weapon in the second degree, and sentencing him to consecutive terms of 15 years to life and 3 1/3 to 10 years concurrent with a term of 2 to 6 years, unanimously affirmed.

 The court properly exercised its discretion in excusing a juror who revealed that he was having significant memory problems and expressed doubt about his ability to sit as a juror.   The juror's statement that both of his parents had died of Alzheimer's disease and that the disease had already fully manifested itself in his older brother indicated the seriousness of the juror's concerns about his memory lapses.

 Defendant's claim of ineffective assistance of counsel was never raised in a CPL 440.10 motion, where crucial background facts might have been developed on proper inquiry (see, People v. Love, 57 N.Y.2d 998, 1000, 457 N.Y.S.2d 238, 443 N.E.2d 486), and therefore this Court cannot evaluate the issue without resort to “supposition and conjecture” (see, People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).   On the instant record, within the context of trial counsel's performance as a whole (see, People v. Cortez, 184 A.D.2d 571, 572, 584 N.Y.S.2d 609, lv. denied 80 N.Y.2d 902, 588 N.Y.S.2d 827, 602 N.E.2d 235), we conclude that defendant received effective assistance, and that counsel's deliberate elicitation of, and simultaneous attack upon, certain potentially damaging testimony, was part of a plausible strategy aimed at discrediting the police (see, People v. Baldi, 54 N.Y.2d 137, 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Steel, 207 A.D.2d 744, 616 N.Y.S.2d 623, lv. denied 84 N.Y.2d 1039, 623 N.Y.S.2d 195, 647 N.E.2d 467;  People v. Dietz, 79 A.D.2d 476, 478-480, 437 N.Y.S.2d 185).

MEMORANDUM DECISION.