People v. Salcedo

• Decision Date: 27 November 1989
• Citation: 155 A.D.2d 699,548 N.Y.S.2d 266
• Parties: The PEOPLE, etc., Respondent, v. Sergio SALCEDO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 266

548 N.Y.S.2d 266

155 A.D.2d 699

The PEOPLE, etc., Respondent, v. Sergio SALCEDO, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 27, 1989.

Philip L. Weinstein, New York City (Leslie Crary, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Robin Bernstein and Amy Appelbaum, of counsel), for respondent.

Before MOLLEN, P.J., and LAWRENCE, EIBER and KOOPER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Moskowitz, J.), rendered April 27, 1987, convicting him of arson in the second degree and reckless endangerment in the first degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

We find no merit to the defendant's contention that the record indicates that he was deprived of the effective assistance of trial counsel. Defense counsel's decision not to cross-examine certain prosecution witnesses concerning their prior inconsistent statements would appear to be a reasonable trial tactic in light of the insignificant nature of the alleged discrepancies (cf., People v. Winston, 134 A.D.2d 546, 521 N.Y.S.2d 110). The four eyewitnesses were entirely consistent in their testimony concerning their observation of the defendant leaving his store just before it burst into flames. Further, while defense counsel's summation remarks may not have been the most effective, it cannot be said that they were so prejudicial to the defendant as to warrant reversal (see, People v. Jones, 55 N.Y.2d 771, 447 N.Y.S.2d 242, 431 N.E.2d 967). Defense counsel's performance, considered as a whole, was sufficiently competent to satisfy the defendant's right to "meaningful representation" at trial (People v. Hewlett, 71 N.Y.2d 841, 842, 527 N.Y.S.2d 735, 522 N.E.2d 1033; see, People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400). We note that the defendant was represented by retained counsel of his own choice and the defendant insisted upon this counsel representing him (see, People v. Salcedo, 68 N.Y.2d 130, 506 N.Y.S.2d 154, 497 N.E.2d 292).

While the trial court's instruction addressed to the defendant's failure to testify at trial was improper, there is no reasonable possibility that this error contributed to his conviction, and it was therefore harmless beyond a reasonable doubt (see, People v. Malcolm, 143 A.D.2d 1049, 533 N.Y.S.2d 764; cf., People v. Reid, 135 A.D.2d 753, 754, 522...