Majority
Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered August 5, 2008, 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.
Defendant did not preserve his claim that certain testimony violated his right of confrontation, and we decline to review it in the interest of justice. As an alternative holding, we conclude that the testimony did not violate defendant’s constitutional rights. Furthermore, this testimony was generally helpful to defendant, and defense counsel pursued a reasonable, nonprejudicial strategy by consenting to its admission, with agreed-upon redactions, and exploiting it in summation. Accordingly, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708 , 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]), and we do not find that any lack of preservation may be excused on the ground of ineffective assistance.
Finally, defendant did not preserve his claim that a mistrial was required after a cooperating witness who also participated in the crime testified on redirect that he believed there was a contract on his life, but that he was willing to testify because he would be serving his sentence in federal prison were he would not be around the defendants. As an alternative holding, no mistrial was warranted because the offending testimony was stricken, clarifying testimony was elicited that the threats on the witness’s life were not directly or indirectly related to defendant and curative instructions were offered.
Concur— Friedman, J.P., Andrias, Richter, Gische and Kahn, JJ.
Cases cited
- People v. Mejias 21 NY3d 73 at 79 p. 870
- People v. Benevento 91 NY2d 708 at 713-714 p. 870
- Strickland v. Washington 466 US 668 p. 870