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People v. Brito

Appellate Division of the Supreme Court of New York, First Department
Apr 1, 2003
304 A.D.2d 320 (N.Y. App. Div. 2003)

Opinion

669

April 1, 2003.

Judgment, Supreme Court, Bronx County (Robert Seewald, J.), rendered December 4, 2000, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 23 years to life and 15 years, respectively, unanimously affirmed.

Zaharah R. Markoe, for respondent.

David A. Zapp, for defendant-appellant.

Before: Nardelli, J.P., Sullivan, Friedman, Marlow, Gonzalez, JJ.


The decision of defendant's trial counsel, after having defended defendant during the trial on a theory of mis-identification, to request a justification charge and to argue in summation that defendant had been misidentified but that "whoever . . . stabbed [the victim] was justified," did not constitute ineffective assistance of counsel. While the defenses may have been inconsistent, the submission of inconsistent defenses to the jury is permissible where warranted by the evidence (People v. Steele, 26 N.Y.2d 526, 529; People v. Garay, 128 A.D.2d 413). We cannot say that the tactic of offering the jury an alternative theory to acquit defendant, although risky and ultimately unavailing, did not reflect, under the circumstances of this case, a reasonable and legitimate strategy (see People v. Benevento, 91 N.Y.2d 708, 713-714).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

People v. Brito

Appellate Division of the Supreme Court of New York, First Department
Apr 1, 2003
304 A.D.2d 320 (N.Y. App. Div. 2003)
Case details for

People v. Brito

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WENDY BRITO, ETC.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 1, 2003

Citations

304 A.D.2d 320 (N.Y. App. Div. 2003)
758 N.Y.S.2d 23

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