People v. Justice
| Decision Date | 31 March 1994 |
| Citation | 610 N.Y.S.2d 4,202 A.D.2d 362 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Jerry JUSTICE, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before MURPHY, P.J., and ELLERIN, KUPFERMAN, ROSS and TOM, JJ.
Judgment, Supreme Court, New York County (Felice Shea, J.), rendered January 7, 1993, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.
Viewing the evidence in a light most favorable to the People, we find that the verdict was neither based on insufficient evidence nor was it against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Defendant's claim of ineffective assistance of counsel fails, because, on this record, unamplified by any post-conviction proceedings (CPL Article 440), defendant has not demonstrated the absence of a strategic explanation for counsel's failure to challenge the voluntariness (CPL 60.45[2][a] of his statement to the complainant (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698). Counsel could reasonably have decided that the best strategy, under all the circumstances, was to seize upon the statement and attack it as a fabrication, undermining the complainant's credibility. In any event, "viewed in totality ... the attorney provided meaningful representation" (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
"Hearsay" testimony was properly admitted, with suitable limiting instructions, not for its truth, but to complete the narrative of events leading up to defendant's apprehension (see, People v. Vega, 169 A.D.2d 586, 587, 564 N.Y.S.2d 438).
Defendant was not entitled to a missing witness charge as to a witness whose relationship to the complainant was no more than that of a friend (People v. Duval, 172 A.D.2d 248, 249, 568 N.Y.S.2d 80, lv denied 77 N.Y.2d 994, 571 N.Y.S.2d 920, 575 N.E.2d 406).
We have reviewed defendant's remaining contentions and find them without merit.
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