PEOPLE v. KIMBOROUGH

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

The PEOPLE of the State of New York, Respondent, v. Jayson KIMBOROUGH, Appellant.

Decided: September 18, 1997

Before MIKOLL, J.P., and CREW, WHITE, YESAWICH and SPAIN, JJ. Robert P. Leslie, Delmar, for appellant. Sol Greenberg, District Attorney (John E. Maney, of counsel), Albany, for respondent.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered April 16, 1996, upon a verdict convicting defendant of the crimes of robbery in the second degree and criminal possession of stolen property in the fifth degree.

After a jury trial, defendant was found guilty of robbery in the second degree and criminal possession of stolen property in the fifth degree.   These charges stemmed from an incident wherein defendant stole the victim's purse, injuring her in the process.

 We reject defendant's contention that statements made by the prosecutor during summation raised the inference that defendant failed to testify in order to hide his criminal background.   Specifically, the prosecutor commented on a witness's criminal background and stated that when a witness “take[s] the stand in a criminal case, that is the kind of thing that does come out”.   We find that “[a]n adverse inference from the defendant's failure to testify was not an inevitable conclusion to be drawn from the prosecutor's statement” (People v. Gilmore, 152 A.D.2d 743, 544 N.Y.S.2d 378, lv. denied 74 N.Y.2d 896, 548 N.Y.S.2d 429, 547 N.E.2d 956;  see, People v. Garcia, 51 A.D.2d 329, 381 N.Y.S.2d 271, affd. 41 N.Y.2d 861, 393 N.Y.S.2d 709, 362 N.E.2d 260).   In any event, any error in this regard was harmless given County Court's instructions to the jury that they were not to draw any negative inferences from defendant's failure to testify combined with the overwhelming evidence of defendant's guilt (see, People v. Wolf, 176 A.D.2d 1070, 1071, 575 N.Y.S.2d 726, lv. denied 79 N.Y.2d 1009, 584 N.Y.S.2d 464, 594 N.E.2d 958).

 Equally unavailing is defendant's claim of ineffective assistance of counsel.   Our review of the record, “ ‘ * * * viewed in totality and as of the time of the representation * * * ’ ” (People v. Wiggins, 89 N.Y.2d 872, 873, 653 N.Y.S.2d 91, 675 N.E.2d 845, quoting People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400), discloses that defense counsel provided meaningful representation by making appropriate pretrial motions, conducting effective cross-examinations, making relevant objections, pursuing an appropriate defense and delivering an effective summation (see, People v. Barber, 231 A.D.2d 835, 836, 647 N.Y.S.2d 590).   Defendant's assertion that defense counsel failed to interview potential witnesses concerns matters outside the record which are properly reviewable in a CPL article 440 motion to develop the record (see, People v. English, 215 A.D.2d 871, 873, 627 N.Y.S.2d 105, lvs. denied 86 N.Y.2d 793, 632 N.Y.S.2d 507, 656 N.E.2d 606, 87 N.Y.2d 900, 641 N.Y.S.2d 230, 663 N.E.2d 1260).   In any event, defendant has failed to establish that but for defense counsel's alleged errors, the outcome would have been different (see, People v. Washington, 233 A.D.2d 684, 689, 650 N.Y.S.2d 334, 338, lv. denied 89 N.Y.2d 1042, 659 N.Y.S.2d 873, 681 N.E.2d 1320).   Accordingly, we find no merit to defendant's assertion of ineffective assistance of counsel (see, People v. Murphy, 235 A.D.2d 933, 937-938, 654 N.Y.S.2d 187, 192;  People v. Parker, 220 A.D.2d 815, 817, 632 N.Y.S.2d 288, lv. denied 87 N.Y.2d 1023, 644 N.Y.S.2d 156, 666 N.E.2d 1070).

ORDERED that the judgment is affirmed.

MIKOLL, Justice Presiding.

CREW, WHITE, YESAWICH and SPAIN, JJ., concur.

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