People v. Rosa

| N.Y. App. Div. | Jan 19, 1999

—Judgment, Supreme Court, New York County (Dorothy Cropper, J.), rendered January 29, 1997, convicting defendant, after a jury trial, of two counts of burglary in the second degree and one count of possession of burglar’s tools, and sentencing him, as a persistent violent felony offender, to concurrent terms of 16 years to life, 16 years to life and 1 year, unanimously affirmed.

Defendant’s claim that he was denied effective assistance of counsel raises, in large part, issues pertaining to defense counsel’s trial strategy that cannot be reviewed on this record and would require expansion of the record by way of a CPL 440.10 motion (People v Gomez, 255 AD2d 246). The existing record reveals that defendant received meaningful representation (People v Benevento, 91 NY2d 708), and completely fails to support defendant’s present argument that his trial counsel should have pursued lines of defense relating to defendant’s purported drug intoxication. “Counsel may not be expected to create a defense when it does not exist” (People v DeFreitas, 213 AD2d 96, 101, lv denied 86 NY2d 872). Concur — Williams, J. P., Wallach, Andrias and Saxe, JJ.