Summary
finding effective assistance of counsel despite failure to lay the proper foundation to impeach an alleged prior inconsistent statement
Summary of this case from Vega v. FischerOpinion
1605
September 24, 2002.
Judgment, Supreme Court, New York County (Laura Visitacion-Lewis, J.), rendered January 5, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously affirmed.
PRISCILLA STEWARD, for respondent.
PAUL J. ANGIOLETTI, for defendant-appellant.
Before: Nardelli, J.P., Saxe, Buckley, Ellerin, Marlow, JJ.
On the totality of the record before us, we find that defendant received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 713-714). Defendant was not deprived of a fair trial when, while pursuing a competent strategy designed to challenge the credibility of a key police witness, trial counsel inadvertently opened the door to evidence of uncharged criminal activity, since this aspect of the evidence was a most logical focus of defense counsel's challenge (see People v. Pressley, 216 A.D.2d 202, lv denied 86 N.Y.2d 800). That the door might have been so opened was a reasonable risk under the circumstances.
The court properly refused to allow defendant to refresh the arresting officer's recollection regarding his route of pursuit of defendant by means of a data sheet that an Assistant District Attorney had prepared after interviewing a different officer, since the arresting officer at no time indicated that he needed his recollection refreshed on this subject. The court also properly refused to allow defense counsel to recall the other officer for purposes of establishing that the arresting officer had made a prior inconsistent statement, since it was never established that the arresting officer spoke with the other officer about the chase route prior to the preparation of the data sheet. Accordingly, defendant failed to lay the proper foundation for introducing the alleged prior inconsistent statement (see People v. Wise, 46 N.Y.2d 321, 326; see also People v. Duncan, 46 N.Y.2d 74, 80-81, cert denied 442 U.S. 910). In any event, these rulings could not have deprived defendant of his right to confront witnesses and present a defense.
We decline to exercise our interest of justice jurisdiction to dismiss the non-inclusory concurrent count (see People v. Spence, 290 A.D.2d 223, 224, lv denied 97 N.Y.2d 734; People v. Kulakov, 278 A.D.2d 519, lv denied 96 N.Y.2d 785).
We perceive no basis for a reduction of sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.