PEOPLE v. LEWIS

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

The PEOPLE of the State of New York, Respondent, v. Kenneth LEWIS, Defendant-Appellant.

Decided: October 29, 2009

SWEENY, J.P., BUCKLEY, DeGRASSE, FREEDMAN, ABDUS-SALAAM, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), and Fried, Frank, Harris, Shriver & Jacobson LLP, New York (Michael F. Savicki of counsel), for appellant. Kenneth Lewis, appellant pro se. Robert T. Johnson, District Attorney, Bronx (Marc Adam Sherman of counsel), for respondent.

Judgment, Supreme, Bronx County (Robert E. Torres, J.), rendered July 27, 2006, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 18 years, unanimously affirmed.

 The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   There is no basis for disturbing the jury's determinations concerning credibility, including its resolution of the minor inconsistencies in the testimony of the prosecution witnesses.   Defendant's objection to the admission of evidence of an alleged uncharged crime that occurred shortly before the altercation at issue is unpreserved and we decline to review it in the interest of justice.   As an alternative holding, we also reject it on the merits.   This evidence was proper background testimony and necessary to complete the narrative, as it explained the origin of the altercation in which defendant stabbed the victim (see People v. Till, 87 N.Y.2d 835, 637 N.Y.S.2d 681, 661 N.E.2d 153 [1995] ).

 Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters of trial strategy outside 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] ).   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] ).   Defendant's remaining pro se contentions are unpreserved and we decline to review them in the interest of justice.   As an alternative holding, we also reject them on the merits.

We perceive no basis for reducing the sentence.