Opinion
July 29, 1985
Appeal from the Supreme Court, Kings County (Jones, J.).
Judgment affirmed.
Contrary to defendant's assertion, the record does not contain overwhelming evidence that he was intoxicated at the time he stabbed his victim. Although defendant testified that he had consumed a "little nip" at a bar prior to the stabbing, he specifically denied being intoxicated in a statement made to an Assistant District Attorney after the crime. There was also testimony that defendant, together with others, had drunk "a couple of quarts of beer" at the apartment where the stabbing occurred; however, this testimony did not establish the quantity of alcohol consumed by defendant and, therefore, fell far short of demonstrating his intoxication.
Under these circumstances, defendant's assertion, on appeal, that the failure of his trial counsel to have requested a jury charge on intoxication constituted ineffective assistance of counsel is without merit. Defendant has failed to demonstrate a deprivation of his right to the effective assistance of counsel under either the "meaningful representation" test established in People v. Baldi ( 54 N.Y.2d 137, 146-147) or the two-pronged test articulated in Strickland v. Washington ( 466 U.S. 668). In view of the inconclusive evidence of defendant's intoxication, coupled with his admission that he had not been drunk, the decision of defendant's trial counsel to rely strictly on the defense of justification, and to forgo a possible intoxication defense, appears to have been an entirely valid trial tactic; the utilization of unsuccessful trial tactics does not bespeak an ineffectiveness of counsel ( People v. Baldi, supra, at p 146; People v. Lundy, 104 A.D.2d 384). Giving due deference to counsel's judgment ( Strickland v. Washington, supra), the decision not to pursue the defense of intoxication in this case was warranted.
Finally, under the circumstances, defendant's sentence was neither unduly harsh nor excessive. Mollen, P.J., Bracken, O'Connor and Niehoff, JJ., concur.