People v. Benning

Appellate Division of the Supreme Court of New York

People v. Benning

219 A.D.2d 848, 632 N.Y.S.2d 1010, 1995 N.Y. App. Div. LEXIS 10934

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 29, 1995

StatusPublished

This text of 219 A.D.2d 848 (People v. Benning) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Benning, 219 A.D.2d 848, 632 N.Y.S.2d 1010, 1995 N.Y. App. Div. LEXIS 10934 (N.Y. Ct. App. 1995).

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Opinion

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of murder in the second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the second degree (Penal Law § 265.03). Upon our review of the record, we conclude that the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). The contention that defendant was deprived of a fair trial by prosecutorial misconduct on summation has not been preserved for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). Given the brutal nature of the crime, we conclude that the sentence is neither unduly harsh nor severe. Finally, the evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, reveal that defense counsel provided meaningful representation (see, People v Baldi, 54 NY2d 137, 147; see also, People v Trait, 139 AD2d 937, 938, lv denied 72 NY2d 867). (Appeal from Judgment of Erie County Court, McCarthy, J. —Murder, 2nd Degree.) Present — Green, J. P., Pine, Fallon, Callahan and Davis, JJ.

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Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of murder in the second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the second degree (Penal Law § 265.03). Upon our review of the record, we conclude that the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). The contention that defendant was deprived of a fair trial by prosecutorial misconduct on summation has not been preserved for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). Given the brutal nature of the crime, we conclude that the sentence is neither unduly harsh nor severe. Finally, the evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, reveal that defense counsel provided meaningful representation (see, People v Baldi, 54 NY2d 137, 147; see also, People v Trait, 139 AD2d 937, 938, lv denied 72 NY2d 867). (Appeal from Judgment of Erie County Court, McCarthy, J. —Murder, 2nd Degree.) Present — Green, J. P., Pine, Fallon, Callahan and Davis, JJ.

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Bluebook (online)

219 A.D.2d 848, 632 N.Y.S.2d 1010, 1995 N.Y. App. Div. LEXIS 10934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-benning-nyappdiv-1995.

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