
    The People of the State of New York, Respondent, v John Lane, Appellant.
    Decided October 20, 1983
    
      APPEARANCES OF COUNSEL
    
      Lee Cross for appellant.
    
      Mario Merola, District Attorney (AlanD. Kaplan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, after a jury trial of burglary in the second degree (Penal Law, § 140.25), a charge arising out of his nighttime entry into a Bronx apartment. He was sentenced as a second felony offender. On this appeal, he alleges ineffective assistance of counsel based on different aspects of his attorney’s conduct both at trial and at sentencing. Chief among these was counsel’s failure to request a charge of the lesser included offense of criminal trespass and his failure to contest defendant’s predicate felony conviction.

In People v Baldi (54 NY2d 137), this court held that when reviewing claimed ineffective assistance of counsel, care should be taken “to avoid both confusing true ineffectiveness [of counsel] with mere losing tactics and according undue significance to retrospective analysis” (id., at p 146). And “[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement [US Const, 6th Arndt; NY Const, art I, § 6] will have been met” (id., at p 147).

Under this standard, it cannot be said that defendant was denied his constitutional right to effective assistance of counsel. The attorney’s failure to request a charge of the lesser included offense of criminal trespass resulted from an “all-or-nothing” defense tactic. Defendant, having taken the stand and admitted to performing acts constituting criminal trespass, asserted that he had consumed angel dust on the subway ride to the neighborhood where these events occurred and, moreover, that he had entered the apartment in an irrational attempt to evade the police. Indeed, the two occupants of the apartment partially corroborated defendant’s testimony, stating that he kept repeating that the police were after him. In view of this evidence, counsel could have reasonably concluded that, as a matter of trial tactics, it would be best to pursue legally accepted defenses of intoxication and lack of the requisite mental state to support a conviction of entering the apartment with intent to commit a crime therein (see Penal Law, §§ 140.25,15.25; 2 NY CJI, Penal Law, § 140.25, subd 2; see, also, People v Baldi, 54 NY2d, at p 151; cf. People v Bell, 48 NY2d 933). Moreover, counsel adequately explained the essence of the lack of intent defense in his summation.

Nor can it be said that defendant was denied effective assistance because counsel failed to challenge defendant’s status as a second felony offender, notwithstanding that the prior felony had a serious impact on defendant’s sentencing (see Penal Law, § 70.06). A review of the two grounds that defendant now contends counsel should have raised to challenge the validity of the underlying offense indicates that their assertion would have been futile.

Defendant first argues that the sentencing court in the prior adjudication promised to extend him youthful offender status in exchange for his guilty plea. Such a promise would have had important repercussions in sentencing in the present conviction inasmuch as a youthful offender adjudication may not be counted as a conviction for purposes of second offender status (see CPL 720.35, subd 1). Contrary to defendant’s assertion, however, a review of the record reveals that the court had not extended to defendant an absolute promise that he would receive youthful offender status.

Defendant also contends that counsel should have contested the prior felony conviction on the ground that defendant had only been advised at the plea allocution that he was waiving the right to a trial, rather than the right to a jury trial (see Boykin v Alabama, 395 US 238, 243). On this record, however, counsel reasonably could have concluded that no prejudice resulted to his client at the plea allocution (see People v Nixon, 21 NY2d 338, 355).

Defendant’s other arguments have been examined and found to be without merit.

Meyer, J.

(concurring). I concur in the result, but only

because there has been no proceeding under CPL 440.10 to develop what defendant’s trial counsel’s reasoning was and whether he had obtained defendant’s concurrence in the strategy after advising him of the risks, if in fact a strategic decision was made to “go for broke” (see People v Crump, 53 NY2d 824; People v Brown, 45 NY2d 852).

The majority memorandum fails to note that prior to trial defendant’s attorney had arranged for defendant to plead guilty to a class D felony, on which, as a predicate felon, defendant would have received at least a 2- to 4-year sentence. That plea offer strongly suggests that the attorney placed little faith in the possibility of acquittal on the basis of the lack of intent defense.

Moreover, bearing in mind that ihe maximum possible sentence for trespass is one year and that defendant had already served four months at the time of trial, the gross gamble involved (with time off for good behavior defendant, if convicted of criminal trespass, would spend but four months more in jail, as compared with the much heavier sentence, mandated by his prior conviction, if convicted of the class C felony on which he was tried) is all but conclusive of the attorney’s “failure to diligently protect his client’s interests” (People v Claudio, 59 NY2d 556, 563).

If, however, defendant was informed that counsel intended to follow such a strategy and of the risks and accepted it nevertheless, he would not be entitled to a new trial. There having been no hearing to explore these matters, I agree that there must be an affirmance.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Simons and Kaye concur; Judge Meyer concurs in result in a separate concurring memorandum.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed in a memorandum.  