People v Cates, 2012 NY Slip Op 01335 [92 AD3d 553]

February 21, 2012

Appellate Division, First Department

— [*1]

Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern of counsel), for appellant.

Walter Cates, Sr., appellant pro se.

Robert T. Johnson, District Attorney, Bronx (Thomas R. Villecco of counsel) for respondent.

Judgment, Supreme Court, Bronx County (John W. Carter, J.), rendered June 10, 2009, 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.

The court properly declined to charge assault in the third degree as a lesser included offense since there was no reasonable view of the evidence, viewed in a light most favorable to defendant, that he was guilty of that charge but not of either murder or manslaughter. Nothing in either the People’s case or defendant’s testimony supported a theory that defendant participated in the vicious beating of the victim, but was merely a bystander to the victim’s immediately ensuing death by strangulation ( see People v Martinez , 30 AD3d 353 [2006], lv denied 7 NY3d 868 [2006]). Under the evidence, defendant either acted with a community of purpose with the other participants throughout the incident, or he did not participate at all and was not guilty of any crime ( see e.g . People v White , 29 AD3d 457 [2006], lv denied 7 NY3d 819 [2006]).

Defendant’s pro se ineffective assistance of counsel claims are unreviewable on direct appeal for lack of a sufficient record ( see 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 [*2] the state and federal standards ( see People v Benevento , 91 NY2d 708, 713-714 [1998]; Strickland v Washington , 466 US 668 [1984]). Defendant’s remaining pro se claims are without merit. Concur—Andrias, J.P., Saxe, Acosta, Freedman and Richter, JJ..