People v. Fernandez

276 A.D.2d 352, 714 N.Y.S.2d 461, 2000 N.Y. App. Div. LEXIS 10594

Opinion

Judgment, Supreme Court, Bronx County (Elbert Hinkson, J., on speedy trial motion; Harold Silverman, J., at jury trial and sentence), rendered June 28, 1996, convicting defendant of murder in the second degree, and sentencing him to a term of 15 years to life, unanimously affirmed.

The verdict was based on legally sufficient evidence. The evidence warranted the conclusion that the deceased was the same person shot at by defendant in close spatial and temporal proximity to the discovery of the body.

Since defendant’s ineffective assistance claim rests on a strategic decision by counsel of a type that would necessitate explanation, this claim would require a CPL 440.10 motion. While defendant asserts that such a motion was made, no such motion is before this Court (see, CPL 450.15 [1]; 460.15). To the extent that the present record permits review, it establishes that defendant received meaningful representation (see, People v Benevento, 91 NY2d 708, 713-714).

To the extent that the limited record permits review, it establishes that defendant was not deprived of his constitutional right to a speedy trial (see, People v Taranovich, 37 NY2d 442). The bulk of the delay in this murder case was attributable to the fact that there were two mistrials and extraordinary difficulties in securing the presence of witnesses.

Defendant’s remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. Concur — Nardelli, J. P., Ellerin, Wallach, Andrias and Saxe, JJ.