People v. Castricone

Judgment unanimously affirmed. Memorandum: There is no merit to the contention of defendant that he was deprived of a fair trial by ineffective assistance of counsel based upon defense counsel’s failure to call certain defense witnesses. Upon remittal (People v Castricone, 224 AD2d 1019), defendant’s trial counsel testified that he and defendant discussed whether to call the witnesses and concluded that the testimony would have been severely undermined on cross-examination and would have been detrimental to the defense. Trial counsel also testified that the decision was not made by counsel unilaterally but was made by defendant after a lengthy discussion with counsel. We conclude that defendant failed to "demonstrate the absence of strategic or other legitimate explanations for counsel’s failure to pursue 'colorable’ claims” (People v Garcia, 75 NY2d 973, 974; see, People v Thompson, 69 NY2d 661, 662-663; People v Baldi, 54 NY2d 137, 146-147).

We have reviewed defendant’s remaining contention and *930conclude that it is without merit. (Resubmission of Appeal from Judgment of Supreme Court, Erie County, Wolfgang, J.— Robbery, 1st Degree.) Present—Green, J. P., Pine, Callahan, Boehm and Fallon, JJ.