People v Khramtsov
2014 NY Slip Op 04573 [118 AD3d 584]
June 19, 2014
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, July 30, 2014


[*1]
 The People of the State of New York, Respondent,
v
Sergei Khramtsov, Appellant.

Stephen C. Cooper, New York, for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.

Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered April 28, 2011, convicting defendant, after a jury trial, of criminal mischief in the second degree, and sentencing him, as a second felony offender, to a term of 21/2 to 5 years, unanimously affirmed.

Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it involves matters of strategy regarding the selection of witnesses that are not reflected in, or fully explained by, the record (see People v Rivera, 71 NY2d 705, 709 [1988]). At most, the record suggests that defense counsel had considered calling a particular medical witness, but it does not explain why that witness, or other potential witnesses cited by defendant on appeal, were not called. Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal. In the alternative, to the extent the existing record permits review, 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]). Concur—Tom, J.P., Moskowitz, DeGrasse, Manzanet-Daniels and Clark, JJ.