Opinion
May 9, 2000.
Judgment, Supreme Court, New York County (Felice Shea, J.), rendered August 8, 1997, convicting defendant, after a jury trial, of sodomy in the first degree and assault in the first and third degrees, and sentencing him to concurrent terms of 7½ to 15 years, 3½ to 7 years and 1 year, respectively, unanimously affirmed.
Kenneth S. Levine, for Respondent.
Daniel R. Williams, for Defendant-Appellant.
WILLIAMS, J.P., WALLACH, LERNER, ANDRIAS, SAXE, JJ.
Defendant's claim that defense counsel was ineffective for failing to secure a witness's attendance by compulsion involves a tactical decision by counsel that would require a CPL 440.10 motion in order to further develop the record (see, People v. Brown, 45 N.Y.2d 852). Furthermore, the record does not establish that the testimony of the uncalled witness would have been helpful to the defense. We note that the prosecutor had intended to call this witness and had anticipated that his testimony would have been largely corroborative of the complainant's testimony. Based on the existing record, we conclude that defendant received meaningful representation (see, People v. Benevento, 91 N.Y.2d 708, 713-714; People v. Hobot, 84 N.Y.2d 1021, 1024).
The court properly denied defendant's request for a continuance to allow him a further opportunity to secure the attendance of this witness. Defendant had already been granted time to attempt to bring in the witness, who had proven to be uncooperative, and the likelihood that the witness would appear and give exculpatory testimony was speculative (see, People v. Covington, 233 A.D.2d 169, lv denied 89 N.Y.2d 941).
Motion seeking to hold appeal in abeyance denied.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.