People v Tjaden

People v Tjaden 2008 NY Slip Op 09722 [57 AD3d 296] December 11, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

The People of the State of New York, Respondent,
v
Charles Tjaden, Appellant.

—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York (Gregory S. Chiarello of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Seth J. Applebaum of counsel), for respondent.

Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered March 23, 2007, convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him, as a second felony offender, to a term of eight years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerning credibility and identification. Defendant's guilt was established by eyewitness testimony that was corroborated by circumstantial evidence.

Defendant's challenges to the court's charge are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. Viewed as a whole (see People v Samuels, 99 NY2d 20, 25-26 [2002]), the court's instructions on the intent element of burglary conveyed the appropriate legal standards. Defendant also claims that his attorney was ineffective for failing to object to the alleged deficiencies in the instructions on intent. However, the circumstances of the case suggest the possibility of strategic considerations, not reflected in the record, for the lack of objection, rendering this claim unreviewable on direct appeal (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [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 [*2]Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]).

We perceive no basis for reducing the sentence. Concur—Friedman, J.P., McGuire, Acosta, DeGrasse and Freedman, JJ.