PEOPLE v. KREBS

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

The PEOPLE, etc., respondent, v. Larry KREBS, appellant.

Decided: October 25, 2004

SONDRA MILLER, J.P., DANIEL F. LUCIANO, STEPHEN G. CRANE, and PETER B. SKELOS, JJ. Lynn W.L. Fahey, New York, N.Y. (Barbara Lerner of counsel), for appellant, and appellant pro se. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Karen F. McGee and Daniela Conti-Maiorana of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney, J.), rendered May 13, 2002, convicting him of manslaughter in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The Supreme Court properly denied the defendant's request for a justification charge since no reasonable view of the evidence supported such a charge.   The defendant stabbed the victim in the neck, when the victim was unarmed, and the defendant had no reason to believe that the victim was carrying a weapon or was about to use deadly physical force against him (see People v. Reynoso, 73 N.Y.2d 816, 818, 537 N.Y.S.2d 113, 534 N.E.2d 30;  People v. Porter, 161 A.D.2d 811, 556 N.Y.S.2d 139;  People v. Harris, 134 A.D.2d 369, 520 N.Y.S.2d 847;  People v. Figueroa, 111 A.D.2d 765, 766, 490 N.Y.S.2d 24).

To the extent that the defendant's claim of ineffective assistance of counsel is premised upon his attorney's alleged failure to properly advise him with respect to his right to testify at trial, such a claim involves matter which is dehors the record and not properly presented on direct appeal (see People v. Martin, 271 A.D.2d 459, 460, 706 N.Y.S.2d 892;  People v. Boyd, 244 A.D.2d 497, 664 N.Y.S.2d 335;  People v. Lebrun, 234 A.D.2d 392, 393, 651 N.Y.S.2d 544).   The claim is otherwise without merit as the record establishes that trial counsel rendered meaningful representation to the defendant (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Martin, supra at 460, 706 N.Y.S.2d 892;  People v. Badia, 159 A.D.2d 577, 578, 552 N.Y.S.2d 439).

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