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Justice Price Click here to see Judicial Profile http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=119948 DEFENDANT, convicted after a non-jury trial of criminal possession of a weapon, moved to vacate the judgment arguing he was denied effective assistance of counsel. Defendant argued that trial counsel’s strategical advice and decisions were neither objectively reasonable nor tactically justified. He contended trial counsel encouraged him to waive a jury trial because counsel believed the court would acquit defendant based on his observation that the judge gave him a “wink.” The court ruled it was evident trial counsel’s decision to opt for a non-jury trial was part of an overall defense strategy. It stated that was apparently an effective strategy as defendant was acquitted of the most serious charges. The court concluded that neither counsel’s regret nor his perceived “sins” constituted anything other than strategical and tactical decisions “gone awry.” Thus, the court said a defendant who relies on counsel’s assurances that a judge would find in his favor merely because of how the judge “unmistakably looks” at counsel, and later learned that counsel was mistaken, was not a serious basis for a Criminal Procedure Law §440.10 motion. Hence, vacatur was denied as defendant entered a knowing and voluntary jury waiver and received effective assistance.

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