8953. PEOPLE, res, v. WARREN STEWART, def-ap — Richard M. Greenberg, Office of the Appellate Defender, New York (Risa Gerson, of counsel), and Debevoise & Plimpton LLP, New York (Stephanie O. Akpa of counsel), for ap — Robert T. Johnson, District Attorney, Bronx (Megan R. Roberts of counsel), for res — Judgment, Supreme Court, Bronx County (Barbara F. Newman, J.), rendered March 26, 2010, convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him to a term of 5 years, unanimously affirmed.
Defendant’s ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or not fully explained by, the trial record concerning counsel’s preparation and strategic choices (see People v. Love, 57 NY2d 998 [1982]). These matters include, among other things, counsel’s reasons for considering but not pursuing an intoxication defense. On the existing record, to the extent it permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v. Washington, 466 US 668 [1984]). Defendant has not shown “the absence of strategic or other legitimate explanations” for counsel’s alleged deficiencies (People v. Rivera, 71 NY2d 705, 709 [1988]). Furthermore, defendant has not shown that any of these alleged deficiencies fell below an objective standard of reasonableness, or that, viewed individually or collectively, they deprived defendant of a fair trial or affected the outcome of the case. “Counsel may not be expected to create a defense when it does not exist” (People v. DeFreitas, 213 AD2d 96, 101 [2d Dept 1995], lv denied 86 NY2d 872 [1995]). Defendant was caught in the act of committing a burglary, to which he also confessed. There is nothing to indicate that he had a viable intoxication defense, or any other viable defense.
