People v. Thomas

Nov 20, 1997
Versions:244 A.D.2d 271
664 N.Y.S.2d 769
1997 N.Y. App. Div. LEXIS 11688

—Judgment, Supreme Court, Bronx County (George Covington, J.), rendered March 15, 1996, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a term of 2V3 to 7 years, and order, same court and Justice entered on or about December 10, 1996, which denied defendant’s motion to vacate judgment pursuant to CPL article 440, unanimously affirmed.

We conclude that defendant received effective assistance of counsel (People v Baldi, 54 NY2d 137). We note that counsel’s tactics met with considerable success in that defendant was acquitted of murder in the second degree and assault in the first degree (see, People v Green, 174 AD2d 511, lv denied 78 NY2d 1011). Trial counsel’s unsuccessful application to exclude certain evidence was strenuously and coherently argued, and defendant’s attack on counsel’s decision not to call certain potential witnesses or to exercise a peremptory challenge against one particular prospective juror amounts to, at most, a disagreement over trial tactics, which does not indicate ineffectiveness (see, People v Rivera, 71 NY2d 705, 708). Accordingly, defendant’s motion to vacate judgment on these grounds was properly denied without a hearing.

The trial court properly admitted evidence of certain uncharged crimes because they were highly relevant to establish defendant’s motive, and to explain the victim’s protracted delay in disclosing to the police the perpetrator of the crime (see, People v Steinberg, 170 AD2d 50, 72-74, affd 79 NY2d 673). Since defendant did not request a limiting instruction, his argument in that regard is unpreserved for appellate review (see, People v Rivera, 234 AD2d 19, lv denied 89 NY2d 1040), and we decline to reach it in the interest of justice. Concur— Sullivan, J. P., Williams, Mazzarelli, Andrias and Colabella, JJ.