PEOPLE v. NJASANG NJI

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

The PEOPLE of the State of New York, Respondent, v. NJASANG NJI, Defendant-Appellant.

Decided: October 20, 2009

TOM, J.P., BUCKLEY, CATTERSON, FREEDMAN, ABDUS-SALAAM, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Daniel A. Warshawsky of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Jason S. Whitehead of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Robert G. Seewald, J.), rendered January 8, 2007, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him to a term of 10 years, unanimously affirmed.

 Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it involve matters outside the record involving counsel's strategic decisions (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] ).   In particular, the present record is insufficient to support defendant's claim that his trial counsel simply followed his client's direction not to pursue a justification defense rather than exercising his own professional judgment.   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] ), in that counsel made a reasonable strategic decision, after consulting with defendant, not to request a justification instruction.   Counsel could have reasonably concluded that a justification defense would have been weak, at best, and that it would have undermined a stronger defense denying culpability and asserting the culpability of a specific third party (see People v. Vukel, 263 A.D.2d 416, 695 N.Y.S.2d 73 [1999], lv. denied 94 N.Y.2d 830, 702 N.Y.S.2d 601, 724 N.E.2d 393 [1999] ).