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

The PEOPLE of the State of New York, Respondent, v. Walter ROSADO, Appellant.

Decided: December 23, 2004

Before:  SPAIN, J.P., CARPINELLO, MUGGLIN, ROSE and KANE, JJ. Robert J. Boyle, New York City, for appellant. Donald A. Williams, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Appeal, by permission, from an order of the County Court of Ulster County (Bruhn, J.), entered June 16, 2003, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of murder in the second degree (three counts), burglary in the first degree (two counts), robbery in the first degree (two counts) and hindering prosecution in the first degree, without a hearing.

In 1996, defendant was convicted of murder in the second degree (three counts) and other related crimes and was sentenced to an aggregate term of imprisonment of 20 years to life.   On appeal, the judgment of conviction was affirmed (244 A.D.2d 772, 666 N.Y.S.2d 227 [1997], lv. denied 91 N.Y.2d 977, 672 N.Y.S.2d 856, 695 N.E.2d 725 [1998] ).   In 2003, defendant moved pursuant to CPL 440.10 to vacate his judgment of conviction on the ground of ineffective assistance of counsel.   County Court denied the motion, without a hearing, finding that the claim of ineffective assistance of counsel was not raised on appeal even though it could have been and that, in any event, defendant did receive the effective assistance of counsel.   Defendant appeals and we affirm.

 The record establishes that defense counsel reviewed defendant's psychiatric records with him and made a conscious decision not to employ a psychiatrist or use the records, instead relying on defendant's own testimony to establish the affirmative defense of duress.   Defendant now asserts that this decision resulted in him receiving ineffective assistance of counsel as those records-submitted in support of this motion-would have aided in establishing that he acted under duress while committing these crimes.   As this issue cannot be decided without knowing the content of the psychiatric records-which were not put in evidence at trial-we disagree with County Court that defendant could have raised this issue on direct appeal and hold that it has been properly raised by the CPL 440.10 motion herein (see People v. Magee, 263 A.D.2d 763, 766, 695 N.Y.S.2d 166 [1999] ).   Nonetheless, we conclude that County Court's summary denial of the motion should be affirmed.

To demonstrate the ineffective assistance of counsel, defendant is required to show that “counsel's acts or omissions ‘prejudice[d] the defense or defendant's right to a fair trial’ ” to the point where defendant did not receive meaningful representation (People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998], quoting People v. Hobot, 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102 [1995];  see People v. Berroa, 99 N.Y.2d 134, 138, 753 N.Y.S.2d 12, 782 N.E.2d 1148 [2002] ).   Whether a defendant received meaningful representation is “viewed in totality and as of the time of the representation” (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ), and “counsel's performance will not be considered ineffective, even if unsuccessful, as long as it reflects an objectively reasonable and legitimate trial strategy under the circumstances and evidence presented,” and the defendant must show that such an explanation is lacking (People v. Berroa, supra at 138, 753 N.Y.S.2d 12, 782 N.E.2d 1148;  see People v. Henry, 95 N.Y.2d 563, 565-566, 721 N.Y.S.2d 577, 744 N.E.2d 112 [2000];  People v. Garcia, 187 A.D.2d 868, 868-869, 590 N.Y.S.2d 565 [1992], lv. denied 81 N.Y.2d 885, 597 N.Y.S.2d 946, 613 N.E.2d 978 [1993] ).

 Here, given trial counsel's conclusion that defendant was not psychotic at the time of trial and in light of those portions of the psychiatric records which would tend to undermine defendant's present claims (see e.g. People v. Smith, 4 A.D.3d 163, 164, 772 N.Y.S.2d 34 [2004] ), we conclude that trial counsel's strategy might well have been pursued by a reasonably competent attorney (see People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834 [1985];  People v. Morehouse, 5 A.D.3d 925, 774 N.Y.S.2d 100 [2004];  People v. Butler, 273 A.D.2d 613, 615, 711 N.Y.S.2d 525 [2000] ).   Thus, we conclude that defendant has not shown that trial counsel's failure to investigate and utilize defendant's psychiatric records, to aid in establishing the duress defense, constituted less than meaningful representation (see People v. Garcia, supra at 868-869, 590 N.Y.S.2d 565).

ORDERED that the order is affirmed.



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