CPL 440.10 (2)(C) New York
In People v. Jordan, 83 NY2d 785, 632 N.E.2d 1275, 610 N.Y.S.2d 952 (1994), counsel's failure to argue passionately' on summation was appropriately reviewed on direct appeal.
In People v. Nusbaum, 222 AD2d 723, 634 N.Y.S.2d 852 (3rd Dept 1995), it was held that the effectiveness of trial counsel's summation is an on the record' claim. See also, People v. Plaisted, 2 AD3d 906, 767 N.Y.S.2d 518 (3rd Dept 2003).
Even though the defendant's trial attorney did not address the acting-in-concert' theory during his summation, he discussed the concept in that the defendant did not shoot the decedent, the co-defendant did.
Since this claim could have been raised on direct appeal, and was not, it is barred from review by this Court. CPL 440.10 (2)(c).
Also, counsel's failure to object is an issue that is easily ascertainable from reading the trial transcript. In People v. Lewis, 2 NY3d 224, 809 N.E.2d 1106, 777 N.Y.S.2d 798 (2004), the Court of Appeals pointed out in a footnote that when an attorney's failure to object is the basis for a claim of ineffective assistance of counsel, that claim, by its very nature, will ordinarily be made for the first time on appeal. See, Lewis at 229, footnote 2.
This claim should have been raised on the defendant's direct appeal, and without justification, was not. As such, consideration of this claim is barred from review. CPL 440.10 (2)(c).