[785 NYS2d 645]

#### The People of the State of New York, Respondent, v Ira Morsby, Appellant.

Supreme Court, Appellate Term, First Department,

October 5, 2004

APPEARANCES OF COUNSEL

*Legal Aid Society,*New York City *(Andrew C. Fine*and *Cheryl P. Williams*of counsel), for appellant. *Robert M. Morgenthau,*
      *65
      *District Attorney,*New York City *(Meredith Boylan*of counsel), for respondent.

OPINION OF THE COURT

Per Curiam.

Judgment of conviction rendered May 3, 2002 affirmed, without prejudice to a motion pursuant to CPL 440.10.

Defendant’s ineffective assistance of counsel claim would require a CPL 440.10 motion so as to expand the record as to counsel’s strategic decisions *(see, People v Baher,*308 AD2d 365 [2003]; *see also, People v Conyers,*114 AD2d 967 [1985], *lv denied*67 NY2d 650 [1986]). To the extent the present record permits review, it does not support a finding that defendant was denied meaningful representation, but, on the contrary, indicates that trial counsel made appropriate pretrial motions, made objections when warranted, delivered effective opening and closing statements and, as appellate defense counsel now acknowledges, “vigorously cross-examined” and “systematically sought to undermine” the credibility of the People’s key witness, the testifying police officer. Notably, trial counsel obtained for defendant an acquittal on each of the theft-related charges submitted to the jury *(see, People v Love,*307 AD2d 528, 533 [2003]). Absent additional background facts available only by way of a CPL 440.10 proceeding, the existing record does not support a finding that defendant’s right to a fair trial was “seriously compromise[d]” *(People v Henry,*95 NY2d 563, 566 [2000]) by defense counsel’s stipulation to certain elements of the drug possession charge underlying defendant’s conviction *(see, People v Cox,*146 AD2d 795, 796 [1989]; *see also, People v Fancher,*267 AD2d 770, 771 [1999], *lv denied*94 NY2d 919 [2000]; *compare, People v Berroa,*99 NY2d 134 [2002]).

Davis, J.

(concurring). I concur with the majority’s opinion that the defendant’s ineffective assistance of counsel claim would require a CPL 440.10 motion to expand the record as to counsel’s rationale for entering into a stipulation acknowledging that the pipe and screen admitted into evidence were the same pipe and screen containing crack residue as those recovered by the police officer “relating to this incident.”

It is, of course, permissible to stipulate to an otherwise uncorroborated chain of custody. Such a stipulation should not, however, have contained language that undermined the defen*66dant’s trial theory that he did not possess the pipe and screen the police witness claimed to have seized from him. While counsel’s representation was otherwise effective, an issue of fact exists as to whether counsel’s decision to enter into the stipulation — expressly conceding that the drug paraphernalia placed in evidence was the same as that “recovered by” the arresting police officer “relating to this incident” — was actually based on a “reasonable and legitimate strategy” *(People v Benevento,*91 NY2d 708, 713 [1998]) in circumstances where defendant’s subsequent testimony denied ownership or knowledge of the contraband and counsel’s summation statements sought to discredit the prosecution evidence as to how the police “retrieved” the contraband.

McCooe, J.E, and Schoenfeld, J., concur; Davis, J., concurs in a separate memorandum.