The opinion of the court was delivered by: Pigott, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
The primary issue presented on this appeal is whether defendant's trial counsel was ineffective for failing to raise a statute of limitations defense. Based on the record before us, we conclude that he was not.
On October 3, 1993, defendant, fifteen years old at the time, shot and killed a cab driver in Queens. Nearly eight years later, he was indicted on three counts of murder in the second degree (Penal Law § 125.25 ,  and ) and one count of manslaughter in the first degree (Penal Law § 125.20). The manslaughter count was subject to a five-year statute of limitations (see CPL 30.10  [b]).
Following a bench trial, defendant was acquitted of murder but convicted of manslaughter.
Defendant then appealed his conviction and at about the same time, through assigned counsel, filed a motion pursuant to CPL 440.10 to vacate his conviction. In his motion he claimed, as relevant to this appeal, that his attorney was ineffective for failing to raise the statute of limitations defense with respect to the manslaughter count*fn1 . Trial counsel saw fit to provide two affirmations with respect to the motion, one for each side. In the affirmation provided for defendant, he stated that he did not consider raising any defense at all and that "perhaps [he] was mistaken and maybe [he] had missed something." In the affirmation he provided the People, he averred that "had [he] considered a statute of limitations defense, [he] would not have raised it, because [he] would have wanted the court to consider the manslaughter charge as an alternative to potentially finding defendant guilty of the greater charge of murder." Instead of deciding the motion on the merits, Supreme Court found that sufficient facts appeared on the record with respect to the issues raised to permit adequate review on direct appeal and denied the motion. Defendant sought leave to appeal the denial of his motion and to consolidate that appeal with his direct appeal, but a Justice of the Appellate Division denied that application.
Defendant then proceeded with his direct appeal. The Appellate Division unanimously affirmed the conviction finding, as relevant here, that defendant's claims of ineffective assistance of counsel involved matters outside the record, and that those matters may not be reviewed on appeal (69 AD 3d 649 [2d Dept 2010]). To the extent that the claim could be reviewed, the court held that counsel's failure to raise the statute of limitations defense reflected a legitimate trial strategy of a reasonably competent attorney, noting, in addition, that counsel adequately cross-examined the People's witnesses, and provided a cogent summation.
A Judge of this Court granted defendant leave to appeal and we now affirm.
As an initial matter, defendant here found himself in a dilemma when
the trial court denied his 440.10 motion because, in its view, the
issue was sufficiently preserved on his direct appeal, only to find
that the appellate court disagreed. As a result, trial counsel's
affirmations, concerning his failure to raise the statute of
limitations defense, were never properly considered by any court.
Although the attorney's affirmations are
not dispositive of the ineffective assistance claim, they
plainly are relevant. This problem could have easily been remedied had
the Appellate Division granted leave on the 440.10 motion and
consolidated it with the direct appeal - a solution we hope our
appellate courts will consider in the future should this situation
arise.*fn2 But because the Appellate Division denied
defendant leave on his 440 motion, we are limited to a review of the
record before us. And, unless it is clear from the record that there
could not have been any legitimate trial strategy for failing to raise
the statute of limitations defense, we must deny defendant relief (cf.
People v Turner, 5 NY3d 476, 483-484 ). Here, we agree with the
Appellate Division that on the record before us, it cannot be said
that counsel did not provide meaningful representation (see People v
Benevento, 91 NY2d 708, 712 ).
We have previously ruled that the single error of failing to raise a statute of limitations defense may qualify as ineffective assistance. In People v Turner (5 NY3d 576 ), we held that appellate counsel was ineffective for failing to argue that trial counsel was ineffective for failing to raise the five-year statute of limitations with respect to a manslaughter count. There, counsel had objected to the submission of the manslaughter count, so it was clear from the record that counsel did not want the jury to consider it as an alternative to murder, yet trial counsel inexplicably failed to support the objection by raising a clear statute of limitations defense. But we have also recognized that in many cases a defendant who thinks his chances of acquittal are small may welcome giving the jury an opportunity to consider a lesser charge (id. at 483-484 citing People v Boettcher, 69 NY2d 174 , 182 n 3 ).
The issue here, then, is whether counsel's failure to raise the defense reflects a legitimate trial strategy of a reasonably competent attorney. In People v Satterfield (66 NY2d 796, 799 ), we held that in ineffective assistance cases, counsel's subjective reasons for a decision are immaterial, so long as "viewed objectively, the transcript and the submissions reveal the existence of a trial strategy that might well have been pursued by a reasonably competent attorney" (emphasis added). Here, there is no dispute that the manslaughter count was barred by the statute of limitations and that such a defense, if raised by trial counsel, would have been successful. But at the time of trial, defendant was facing second degree murder charges with an admission that he had fired the shot that caused the cab driver's death. Therefore, had the manslaughter count been dismissed prior to verdict, the trier of fact would have been left with murder as the only choice if defendant was to be found criminally responsible for the homicide. So allowing the trial court to consider the manslaughter count would be a legitimate strategy. And it is clear from the record that the defense counsel in this case wanted the court to do just that. During summation, he specifically requested that the court consider the manslaughter count on the theory that defendant stated that he took out the weapon to stop a robbery. Based on differing trial strategies, defense counsel then argued that defendant should be acquitted of all of the counts or be convicted only of manslaughter.
As to the other issue raised on this appeal, we reject defendant's claim that defense counsel was ineffective for failing to move to reopen the suppression hearing since, on this record, it is clear that it would not have resulted in a different ruling.
Accordingly, the order of the Appellate Division should be affirmed.
On this record, I believe that defendant received ineffective assistance of counsel. ...