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

The PEOPLE of the State of New York, Respondent, v. Alejandro DELACRUZ, Defendant–Appellant.


Decided: November 21, 2019

Friedman, J.P., Renwick, Oing, Singh, JJ. Janet E. Sabel, The Legal Aid Society, New York (Ellen Dille of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.

Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered June 20, 2013, convicting defendant, after a nonjury trial, of attempted gang assault in the second degree and assault in the second degree, and sentencing him to concurrent terms of two years, unanimously modified, on the law, to the extent of vacating the attempted gang assault conviction and dismissing that charge, and otherwise affirmed.

“[A]ttempted gang assault in the second degree is a legal impossibility for trial purposes” (Matter of Cisely G., 81 A.D.3d 508, 508, 918 N.Y.S.2d 23 [1st Dept. 2011];  see also People v. Campbell, 72 N.Y.2d 602, 605–606, 535 N.Y.S.2d 580, 532 N.E.2d 86 [1988] ).  “One cannot attempt to create an unintended result” (People v. Prescott, 95 N.Y.2d 655, 722 N.Y.S.2d 778, 745 N.E.2d 1000 [2001]).  The People's arguments for revisiting our determination in Cisely G. are unpersuasive.

Defendant failed to preserve, or affirmatively waived, his argument that the court erred in admitting two pieces of evidence that were allegedly the fruits of what the court, in suppressing other evidence, had determined to be an unlawful arrest, and we decline to review this claim in the interest of justice.  As an alternative holding, we find no basis for reversal.  Defendant's argument that defense counsel was ineffective because he failed to seek exclusion of this evidence at trial is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record, regarding counsel's strategic decision to concede the element of identity while raising other issues in this nonjury trial (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ).  To the extent the claim can be reviewed on the present record, defendant has failed to establish ineffective assistance (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).