Opinion
2012-02-21
The PEOPLE of the State of New York, Respondent, v. Walter CATES, Sr., Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern of counsel), for appellant. Walter Cates, Sr., appellant pro se.
Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern of counsel), for appellant. Walter Cates, Sr., appellant pro se. Robert T. Johnson, District Attorney, Bronx (Thomas R. Villecco of counsel) for respondent.ANDRIAS, J.P., SAXE, ACOSTA, FREEDMAN, RICHTER, JJ.
Judgment, Supreme Court, Bronx County (John W. Carter, J.), rendered June 10, 2009, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.
The court properly declined to charge assault in the third degree as a lesser included offense since there was no reasonable view of the evidence, viewed in a light most favorable to defendant, that he was guilty of that charge but not of either murder or manslaughter. Nothing in either the People's case or defendant's testimony supported a theory that defendant participated in the vicious beating of the victim, but was merely a bystander to the victim's immediately ensuing death by strangulation ( see People v. Martinez, 30 A.D.3d 353, 817 N.Y.S.2d 288 [2006], lv. denied 7 N.Y.3d 868, 824 N.Y.S.2d 613, 857 N.E.2d 1144 [2006] ). Under the evidence, defendant either acted with a community of purpose with the other participants throughout the incident, or he did not participate at all and was not guilty of any crime ( see e.g. People v. White, 29 A.D.3d 457, 816 N.Y.S.2d 416 [2006], lv. denied 7 N.Y.3d 819, 822 N.Y.S.2d 494, 855 N.E.2d 810 [2006] ).
Defendant's pro se ineffective assistance of counsel claims are unreviewable on direct appeal for lack of a sufficient record ( see People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ). On the existing record, to the extent it permits review, we find that defendant received effective assistance under the state and federal standards ( see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998]; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). Defendant's remaining pro se claims are without merit.