People v. Smith, 1270.

• Decision Date: 17 February 2004
• Docket Number: 1270B.,1270.
• Citation: 772 N.Y.S.2d 34,2004 NY Slip Op 00982,4 A.D.3d 163
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LEON SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

4 A.D.3d 163

772 N.Y.S.2d 34

2004 NY Slip Op 00982

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LEON SMITH, Appellant.

1270.

1270B.

Appellate Division of the Supreme Court of the State of New York, First Department.

February 17, 2004.

Judgment, Supreme Court, New York County (William Wetzel, J.), rendered February 6, 1998, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 16 years to life, and order, same court and Justice, entered on or about October 1, 2003, which, after a hearing, denied defendant's motion to vacate the judgment of conviction pursuant to CPL 440.10, unanimously affirmed.

Our prior order in this matter (301 AD2d 471 [2003]) reversed Supreme Court's summary denial of defendant's CPL 440.10 motion, remanded for a hearing and decision de novo on that motion, and held the appeal from the judgment of conviction in abeyance pending the conclusion of the proceedings on remand. Based on the record of the CPL 440.10 hearing that was held on remand, we now affirm Supreme Court's posthearing denial of the motion to vacate defendant's conviction.

At the hearing, defendant's trial counsel testified that, prior to the trial, he had confirmed that the psychiatrist who had been retained to present an insanity defense would be available to testify. Trial counsel further testified, however, that a civilian witness testified at trial that, while he was restraining defendant after the alleged robbery and awaiting the arrival of the police, defendant offered to split the stolen money with the witness if the witness would allow defendant to escape. Counsel testified that he considered this testimony to be highly credible and likely to cause the psychiatric witness, on cross-examination, to abandon his opinion that defendant had been in a psychotic state at the time of the subject incident. Accordingly, counsel testified, he made a strategic determination not to call the witness. The reasonableness of this strategic choice is confirmed by the psychiatrist's hearing testimony that the testimony concerning defendant's offer to split the robbery proceeds, if credible, "certainly would demolish any contention that [defendant] was in a psychotic state at the time," and would have required the psychiatrist "to abandon his position" on the insanity defense. In view of the testimony by counsel and the psychiatrist, which the hearing court credited, we conclude that defendant received meaningful representation at trial (see People v Benevento, 91 NY2d 708, 713-714 [1998]), and therefore affirm the denial of his CPL 440.10 motion. We do not here address the other...