Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Margarita Lopez Torres, J.), rendered August 22, 2005. The judgment convicted defendant, upon a jury verdict, of falsely reporting an incident in the third degree.

Judgment of conviction affirmed.

The trial court sustained defense counsel's objection to the prosecutor's isolated reference to defendant's failure to testify, and in the absence of a request for a curative instruction or for a mistrial, any complaint with respect to the error or the court's response to the objection is not preserved for appellate review (e.g. People v Medina, 53 NY2d 951, 953 [1981]; People v Powell, 4 AD3d 489, 490 [2004]; People v Clemmings, 300 AD2d 672 [2002]; People v Joseph, 298 AD2d 601 [2002]). Similarly, defendant's claim that the court, in error, issued an unrequested jury charge concerning
defendant's failure to testify also is unpreserved (CPL 470.05 [2]; see People v Robinson, 88 NY2d 1001, 1001-1002 [1996]; People v Mitchell, 298 AD2d 602 [2002]). The record fails to disclose that the defense interposed any objection to the charge. Moreover, given the incomplete record in this matter, particularly the absence of a transcript of the pre-charge conference (e.g. People v Camacho, 90 NY2d 558, 563 [1997]; People v Kinchen, 60 NY2d 772, 773-774 [1983]; People v Dockery, 253 AD2d 889 [1998]), we decline to exercise our discretion to address the merits of these claims in the interest of justice.

Defendant's contention that she was denied the effective assistance of counsel by virtue of counsel's failure to preserve error regarding prosecutorial misconduct and the unrequested charge pursuant to CPL 300.10 (2) is likewise not supported by the record before us. The derelictions alleged implicate matters of strategy (People v Vereen, 45 NY2d 856, 857 [1978]). "Since defendant's ineffective assistance of counsel claim rests primarily on matters outside the record, it would require a CPL 440.10 motion" (People v Lopez, 2 AD3d 234 [2003]; see also People v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998, 1000 [1982]; People v [*2]Polanco, 13 AD3d 100, 101 [2004]). "To the extent that the existing record permits review" (People v Lopez, 2 AD3d 234, supra), under the "flexible" approach required by the state constitution (People v Benevento, 91 NY2d 708, 712 [1998]), that is, whether on
the law, evidence and circumstances of the particular case, and viewing the process "as a whole" (People v Henry, 95 NY2d 563, 565 [2000]), trial counsel's representation was "meaningful" (People v Baldi, 54 NY2d 137, 147 [1981]). Counsel exhibited a competent command of the relevant law and facts, articulated a coherent and substantive trial strategy, interposed numerous, successful objections, conducted vigorous cross-examination of witnesses, and offered a closing argument that emphasized the People's burden of proof and whatever weakness in the evidence that he perceived to undermine that proof. As it cannot be said that defense counsel's conduct with respect to the prosecutorial misconduct and the jury charge issues was so "egregious and prejudicial as to compromise . . . defendant's right to a fair trial" (People v Caban, 5 NY3d 143, 152 [2005]), given "an otherwise competent performance" (People v Turner, 5 NY3d 476, 480 [2005]), the judgment of conviction should be affirmed.

Pesce, P.J., and Rios, J., concur.
Golia, J., taking no part.
Decision Date: September 13, 2007