People v. Green

Apr 5, 1985
Reporters:
,

*1036Defendant also claims that he was denied the effective assistance of counsel because his trial counsel refused to call witnesses whom the defendant wanted to testify at ‍‌‌​‌‌‌​​​‌‌​​​‌‌​‌‌​‌​​‌‌‌​​​‌​​‌​​​‌​​​​‌​​​​‌​​‌‌​‌‌​‌‌‌‌​‌‌‌​​​‌​​‌​‌‌‌​​​‌‌‌‌‌‌​​‌‌‌‌‌‌‌​​‌‌‍trial and refused to allow him to testify in his own behalf. At a hearing on defendant’s motion to vacate the judgment (CPL 440.10), defendant’s trial counsel testified that defendant had wanted him to call three jailhouse companions to testify that the victim had purchased cocaine from one and was buying drugs and having ‍‌‌​‌‌‌​​​‌‌​​​‌‌​‌‌​‌​​‌‌‌​​​‌​​‌​​​‌​​​​‌​​​​‌​​‌‌​‌‌​‌‌‌‌​‌‌‌​​​‌​​‌​‌‌‌​​​‌‌‌‌‌‌​​‌‌‌‌‌‌‌​​‌‌‍sexual relations with another. Counsel refused to call the witnesses because he learned that their story was a fabrication. He *1037obviously acted properly and consistently with his ethical obligations in not calling those witnesses. Trial counsel also testified that he had advised defendant not to testify in his own behalf because he testified at ‍‌‌​‌‌‌​​​‌‌​​​‌‌​‌‌​‌​​‌‌‌​​​‌​​‌​​​‌​​​​‌​​​​‌​​‌‌​‌‌​‌‌‌‌​‌‌‌​​​‌​​‌​‌‌‌​​​‌‌‌‌‌‌​​‌‌‌‌‌‌‌​​‌‌‍a suppression hearing and had denied involvement in the crime. That testimony was inconsistent with the defense theory at trial which was that defendant had committed larceny but not the sexual offenses. In addition, trial counsel stated that defendant had an extensive record and he could, therefore, be impeached on the basis of ‍‌‌​‌‌‌​​​‌‌​​​‌‌​‌‌​‌​​‌‌‌​​​‌​​‌​​​‌​​​​‌​​​​‌​​‌‌​‌‌​‌‌‌‌​‌‌‌​​​‌​​‌​‌‌‌​​​‌‌‌‌‌‌​​‌‌‌‌‌‌‌​​‌‌‍his prior convictions. Counsel stated that defendant understood that he was not going to testify and the reasons that he was not. There is no support for defendant’s claim that the decision was made without his consent.

We have considered the many other claims raised by defendant and find them to be similarly lacking in ‍‌‌​‌‌‌​​​‌‌​​​‌‌​‌‌​‌​​‌‌‌​​​‌​​‌​​​‌​​​​‌​​​​‌​​‌‌​‌‌​‌‌‌‌​‌‌‌​​​‌​​‌​‌‌‌​​​‌‌‌‌‌‌​​‌‌‌‌‌‌‌​​‌‌‍merit. (Appeal from judgment of Oneida County Court, Buckley, J. — attempted rape, and other offenses.) Present — Dillon, P. J., Callahan, Denman, Green and Schnepp, JJ.