People v. Delage

Crew III, J. Appeals (1) from a judgment of the County Court of Broome County (Mathews, J.), rendered July 2, 1992, upon a verdict convicting defendant of the crime of robbery in the second degree, and (2) by permission, from an order of said court, entered March 11, 1993, which denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing. Defendant contends that he did not receive a fair trial because County Court improperly characterized certain trial testimony as constituting evidence of uncharged crimes when giving cautionary instructions to the jury. The record reflects that defendant did not object to the court’s characterization of that testimony or the instructions given in that regard and he has, therefore, failed to preserve the issue for review (see, CPL 470.05 [2]; People v Gutkaiss, 206 AD2d 584; People v Blow, 172 AD2d 366, lv denied 78 NY2d 962). Moreover, the cautionary instructions given by the court to the jury were requested by defense counsel. We find equally unavailing defendant’s contention that he was denied the effective assistance of counsel. A review of the record demonstrates that defendant’s attorney made appropriate discovery demands, aggressively cross-examined the People’s witnesses and presented a viable defense. Defendant’s primary complaint concerns the manner in which trial counsel dealt with a prior statement of an accomplice wherein the accomplice denied that defendant had any involvement in the robbery. By cross-examining the accomplice in that regard, defendant’s attorney opened the door for the accomplice to [526] explain that his initial statement had been prompted by defendant’s intimidation. This complaint has to do with trial counsel’s unsuccessful trial tactics, which does not establish ineffectiveness (see, People v Baldi, 54 NY2d 137). We have reviewed defendant’s remaining contentions, including defendant’s assertion in his pro se brief that County Court erred in summarily denying his CPL 440.10 motion, and find them to be unpersuasive. Mikoll, J. P., Casey and Peters, JJ., concur. Ordered that the judgment and order are affirmed.